ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

February 5, 2004

JAMES ARTHUR LEE

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-1260

PRO SE MOTION FOR RULE ON CLERK TO PROCEED WITH APPEAL OF POSTCONVICTION ORDER [CIRCUIT COURT OF JEFFERSON COUNTY, NO. CR 99-812-1-3-5, CR 2000-814-1-5, CR 2000-916-1-5, HON. FRED DAVIS, JUDGE]

MOTION DENIED

Per Curiam

On January 28, 2002, judgment was entered reflecting that James Arthur Lee had entered a plea of guilty to the offenses of being a felon in possession of a firearm, possession of a controlled substance, and possession of a controlled substance with intent to deliver. An aggregate sentence of 240 months' imprisonment was imposed.

On April 19, 2002, Lee filed in the trial court a petition for postconviction relief pursuant to Criminal Procedure Rule 37.1 seeking to have the judgment vacated. On September 25, 2002, the court denied the relief sought, and petitioner filed a timely pro se notice of appeal on October 17, 2002.

On February 18, 2003, which was 124 days after the notice of appeal was filed, petitioner tendered the record to this court. Our clerk correctly declined to lodge it because it was not tendered here within ninety days of the date of the notice of appeal as required by Ark. R. App. P.-Civil 5(a).

Some nine months later on November 7, 2003, Lee filed the instant motion seeking to lodge the record belatedly. Rather than explaining the reason for the late tender of the record, petitioner Lee argues that his petition for postconviction relief was meritorious. He also contends that the attorney who represented him when he entered his plea of guilty should have taken an appeal from the original judgment of conviction. 1

A petitioner has the right to appeal a ruling on a petition for postconviction relief. Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984). With that right, however, goes the responsibility to file a timely notice of appeal and tender the record here within the time limits set by the rules of procedure. If a petitioner fails to tender the record in a timely fashion, the burden is on the petitioner to make a showing of good cause for the failure to comply with proper procedure. See 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).

Neither the merit of the underlying postconviction petition nor claims of ineffective assistance of counsel as they relate to the entry of the original judgment of conviction are considered when assessing whether a petitioner has stated good cause for his failure to perfect an appeal from a postconviction order. Here, it was the responsibility of petitioner Lee to perfect an appeal from the order of September 25, 2002, by tendering the record here within the time allowed by Rule 5(a). See Sullivan v. State, supra. He failed to do so and has not established that there was good cause for his failure to act. Accordingly, the motion to proceed with the appeal is denied.

Motion denied.

1 While petitioner's allegation that counsel failed to represent him adequately in the guilty plea proceeding is not germane to the instant motion, it should be noted that Ark. R. App. P.--Crim.1(a) provides that there is no direct appeal from a plea of guilty, except in those instances where the defendant has entered a conditional plea of guilty, reserved in writing, to appeal an adverse determination of a pretrial motion to suppress evidence. Petitioner does not contend, and the record does not reflect, that his plea of guilty was conditional. As a result, there was no right to appeal from the January 28, 2002, judgment of conviction.