ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

NOVEMBER 20, 2003

FREDERICK PENNINGTON

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-1039

PRO SE MOTION FOR BELATED APPEAL OF ORDERS [CIRCUIT COURT OF PULASKI COUNTY, NO. CR 77-1933, CR 77-1934, CR 77-1393, HON. JOHN LANGSTON, JUDGE]

MOTION DENIED

Per Curiam

In 1978, Frederick Pennington pleaded guilty to capital felony murder, first degree battery, and multiple counts of aggravated robbery. An aggregate sentence of life imprisonment was imposed.

In 2003, Pennington filed a series of pro se pleadings in the trial court, all of which were denied in three orders entered April 14, 2003. Before the orders were entered, petitioner Pennington had filed a notice of appeal on March 26, 2003, in which he said that he was appealing an order entered March 5, 2003. When the appeal record was tendered to this court, there was no order entered on March 5, 2003, contained in it, and there was no notice of appeal from the April 14, 2003, orders.

When the record was tendered here, our clerk correctly declined to lodge it because the only notice of appeal did not correspond to any order contained in the record. Now before us is petitioner's motion for belated appeal. In the motion he contends that he mailed a notice of appeal from the April 14, 2003, orders but it was not received by the circuit clerk.

It appears that petitioner is placing the fault for the absence of a notice of appeal in the record on the circuit clerk. In effect, he contends that it was the clerk rather than he who failed to perfect the appeal. Petitioner offers no proof of having mailed a notice of appeal pertaining to the April 14, 2003, orders.

A petitioner has the right to appeal a ruling on any petition for postconviction relief or a ruling on a petition for writ of habeas corpus. See Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984). With that right goes the responsibility to file a timely notice of appeal within thirty days of the date the order was entered in accordance with Ark. R. Civ. P. 4(a) in civil matters or Ark. R. Crim. P. 2(a)(4) in criminal matters.

If the petitioner fails to file a timely notice of appeal, a belated appeal will not be allowed absent a showing by the petitioner of good cause for the failure to comply with proper procedure. Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987). The fact that a petitioner is proceeding pro se in itself does not constitute good cause for the failure to conform to the prevailing rules of procedure. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983); see also Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990).

This court has specifically held that it is not the responsibility of the circuit clerk or anyone other than the appellant to perfect an appeal. See Sullivan v. State, supras. We have further held that the litigant who claims to have mailed an item has the burden of proving that he mailed it and that it reached the circuit clerk by the date it was due to be filed. See Leavy v. Norris, 324 Ark. 346, 920 S.W.2d 842 (1996). The bare allegation that a notice of appeal was mailed is not in itself good cause to grant a belated appeal. Skaggs v. State, 287 Ark. 259, 697 S.W.2d 913 (1985). As we said in Skaggs,

If it [the allegation that a notice was mailed]

were [sufficient], there would be no point in setting up

rules of procedure since the procedural requirements

could be circumvented by a simple claim that the

petitioner's failure to comply with the rules was

caused by the post office.

It must be assumed that if the petitioner had mailed the notice of appeal from the April 14, 2003, orders to the clerk on time, it would have been delivered and filed. Leavy, supra. As petitioner has not established that the clerk received the notice within thirty days of the orders appealed from but did not file it and has stated no good cause for his failure to file a timely notice of appeal, the motion to proceed with a belated appeal is denied.

Motion denied.