ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

February 12, 2004

KIRK LUSTER

Petitioner

v.

STATE OF ARKANSAS

Respondent

CACR 96-609

PRO SE MOTION FOR BELATED APPEAL OF POSTCONVICTION ORDER [CIRCUIT COURT OF CLARK COUNTY, NO. CR 95-159, HON. ROBERT McCALLUM, JUDGE]

MOTION DENIED

Per Curiam

In 1996, Kirk Luster was found guilty by a jury of possession of a controlled substance with intent to deliver for which he was sentenced to twenty-five years' imprisonment. The docket number assigned to the case in the trial court was CR 95-159. Luster appealed from the judgment, and when the record on appeal was lodged with the Arkansas Court of Appeals, the trial court docket number was mistakenly indicated on the appellate docket as CR 95-115. The court of appeals affirmed the judgment. Luster v. State, CACR 96-609 (Ark. App. April 30, 1997). Both the opinion affirming the judgment and the court's mandate, which was issued on May 20, 1997, bore the incorrect lower court number.

On December 29, 2003, Luster filed a motion in the court of appeals, asking that a corrected opinion and mandate be issued reflecting the correct lower court number. He also alleged in the motion that the error in the docket number had caused the trial court to conclude erroneously that a Rule 37.1 petition he had filed in CR 95-159 was untimely and that he should be permitted to proceed now with a belated appeal of the Rule 37.1 order.

In response to the motion, the court of appeals issued a corrected opinion and mandate with the correct lower court number. The court declined, however, to consider whether petitioner was entitled to a belated appeal of the Rule 37.1 order and certified that aspect of the motion to this court to decide.1 Luster v. State, CACR 96-609 (Ark. App. January 29, 2004). The certification to this court was proper in that this court alone can grant leave to proceed with an untimely appeal of a postconviction order. Ark. R. Crim. P. 2(e).

Petitioner did not file with the motion a certified record of the proceedings with respect to the Rule 37.1 petition which was denied by the trial court. Nevertheless, even if we accepted the uncertified copy of the order entered June 2, 1998, which denied petitioner's Rule 37.1 petition that is appended to the motion and petitioner's assertions concerning the order, there is no ground to grant a belated appeal.

First, petitioner contends that he filed a timely notice of appeal after the order was entered, but the circuit clerk failed to perfect the appeal. If this assertion is accurate, it is clear that petitioner could have perfected the appeal in 1998 but failed to do so. Placing fault on the circuit clerk is not sufficient grounds for permitting an untimely appeal to go forward. We have consistently held that it is not the responsibility of the circuit clerk or anyone other than the party desiring to appeal to perfect the appeal. See Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990); Bragg v. State, 297 Ark. 348, 760 S.W.2d 878 (1988). All litigants, including those who proceed pro se, must bear responsibility for conforming to the rules of procedure or demonstrating a good cause for not doing so. Bragg v. State, supra; Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986); Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983). The pro se appellant receives no special consideration on appeal. See Gibson v. State, 298 Ark. 43, 764 S.W.2d 617 (1989).

Furthermore, even if petitioner failed to file a notice of appeal in 1998 as he asserts, any motion for belated appeal filed at this time, more than five years after the order was entered, would be untimely pursuant to Ark. R. Crim. P. 2(e). Rule 2(e), which permits a belated appeal in a postconviction matter in some instances, provides that an application for a belated appeal shall not be entertained by this court unless filed within eighteen months of the date the order denying postconviction relief was entered.

It is clear from the content of petitioner's motion that he was not diligent in his efforts to challenge the order denying postconviction relief. Accordingly, he is not entitled to proceed with a belated appeal.

Motion denied.

1 For clerical reasons, the motion retains the docket number assigned to the appeal lodged in the court of appeals.