ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

NOVEMBER 13, 2003

GLENN A. WILLIAMS

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-873

PRO SE MOTIONS FOR EXTENSION OF TIME TO FILE BRIEF AND FOR APPOINTMENT OF COUNSEL [CIRCUIT COURT OF FULTON COUNTY, CR 2000-42-1, HON. JOHN DAN KEMP, JUDGE]

MOTION FOR EXTENSION OF TIME GRANTED; MOTION FOR APPOINTMENT OF COUNSEL DENIED

Per Curiam

In 2001, Glenn A. Williams was found guilty by a jury of manufacturing a controlled substance, possession of a controlled substance with intent to deliver, and possession of drug paraphernalia. An aggregate term of 1,200 months' imprisonment was imposed. The court of appeals affirmed. Williams v. State, CACR 01-1143 (Ark. App. September 4, 2002).

Williams subsequently filed in the trial court a timely petition pursuant to Criminal Procedure Rule 37 seeking to vacate the judgment.1 The petition was denied, and the record on appeal from the order has been lodged here. Appellant Williams, who is in the custody of the Arkansas Department of Correction and proceeding pro se, now seeks an extension of time to file the appellant's brief. He further asks that counsel be appointed to represent him.

The motion for extension of time to file the appellant's brief, which is the first such motion filed by appellant in this appeal, is granted. The time to file the appellant's brief is extended to forty days from the date of this opinion.

The motion for appointment of counsel is denied. Postconviction matters are considered civil in nature with respect to the right to counsel, and there is no absolute right to appointment of counsel in civil matters. See Virgin v. Lockhart, 288 Ark. 92, 702 S.W.2d 9 (1986). Pursuant to Rule 37.3(b) the trial court may at its discretion appoint counsel if a hearing is held on a Rule 37 petition, but, again, there is no absolute right to counsel. Nevertheless, we have held that if an appellant makes a substantial showing that he is entitled to relief in a postconviction appeal and that he cannot proceed without counsel, we will appoint counsel. See Howard v. Lockhart, 300 Ark. 144, 777 S.W.2d 223 (1989). Appellant here has not demonstrated that there is merit to the appeal.

Motion for extension of brief time granted; motion for appointment of counsel denied.

1 Petitioner Williams also filed an amended petition, but he did so without first obtaining leave of the court. Criminal Procedure Rule 37.2(e) provides that before the court acts upon a petition filed under the rule, the petition may be amended with leave of the court. As petitioner did not obtain leave to file an amended petition, the amended petition was of no effect and was dismissed by court.