Opinion
No. CR12-577
04-18-2013
LEON JACKSON RICE APPELLANT v. STATE OF ARKANSAS APPELLEE
Leon Jackson Rice, pro se appellant. No response.
PRO SE MOTIONS TO VACATE
JUDGMENT-AND-COMMITMENT
ORDER AND FOR DISMISSAL OF
CHARGES [PULASKI COUNTY
CIRCUIT COURT, CR 10-1733, HON.
HERBERT T. WRIGHT, JR., JUDGE]
MOTIONS DENIED IN PART,
TREATED AS MOTIONS TO
SUPPLEMENT THE RECORD IN
PART, AND GRANTED IN PART;
WRIT OF CERTIORARI ISSUED.
PER CURIAM
Appellant Leon Jackson Rice lodged in this court an appeal from the denial of his petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2012). He has filed two motions in which he asserts that the record on appeal is incomplete, that the missing portions are necessary for preparation of his brief, and that, as a result of the omission, which he contends violates his due-process rights, the proceedings to convict him were rendered void. Appellant additionally reasserts claims from his petition as a basis for vacating the judgment.
Appellant previously filed motions that requested access to the record and an extension of time in which to file his brief. The motions were granted. Rice v. State, 2013 Ark. 93 (per curiam).
As the State in its response correctly asserts, appellant's claims seeking to have this court reverse the trial court, dismiss the charges filed, or vacate the judgment are merely an attempt to have this court rule on the merits of the appeal before it is properly briefed. We will not do so, and appellant's motions are denied to the extent that appellant seeks such relief. Appellant also, however, requests to have "excluded portion[s] of the trial transcript and records" so that he can file his brief, noting that he previously requested a copy of the record and an extension of time in order to prepare his brief. There is merit to at least some portion of his request. Although appellant does not style the two motions as including a motion to supplement the record, because he makes such a request, we treat the two motions, in part, as motions to supplement the record.
Appellant clearly requests that the record include a transcript and any record of a plea-and-arraignment hearing on June 16, 2010. The trial court specifically referenced this hearing in its order denying postconviction relief, and, as a consequence, that hearing is relevant to this appeal. Appellant also references other documents that the trial court did not specifically reference in its order. It is not clear that appellant sought to bring up these other documents, but, in any case, he has not demonstrated that the documents should be included in the record on appeal. This court has consistently held that it cannot, in the exercise of its appellate jurisdiction, receive testimony or consider anything outside of the record below. Lowe v. State, 2012 Ark. 185, ___ S.W.3d ___ (per curiam).
The State contends that the hearing is not relevant to our review because it was not included in the record on direct appeal of appellant's conviction to the Arkansas Court of Appeals. This court takes judicial notice of the record on direct appeal in postconviction proceedings, and it is not necessary to supplement the record where the trial record provides an adequate record of what was considered below. Davis v. State, 2013 Ark. 118 (per curiam). However, where the previously lodged record does not contain documents that were considered by the trial court in a postconviction proceeding, that record on direct appeal is incomplete and inadequate for the postconviction proceeding.
A writ of certiorari is hereby issued for the Pulaski County Circuit Clerk to provide, within thirty days of this opinion, a supplemental record containing the transcript and record of the plea-and-arraignment hearing on June 16, 2010, that was referenced in the order denying postconviction relief. Our clerk is directed to set a new briefing schedule when the supplemental record is received.
We note that appellant's petition for leave to proceed on appeal in forma pauperis was granted by the trial court. The State's position that the appellant should be required to pay for preparation of any supplemental record is therefore without merit.
--------
Motions denied in part, treated as motions to supplement the record in part, and granted in part; writ of certiorari issued.
Leon Jackson Rice, pro se appellant.
No response.