Opinion
CR 10-560
Opinion Delivered September 23, 2010
Pro Se Motions for Extension of Time to File Brief, for Change of Venue, to Represent Statement of Facts, for Sentence Reduction, to Correct Charge, To Dismiss Judgment, To Argue Case In Person, To Allege Illegal Search and Seizure, To Allege Lack of Jurisdiction, and for Appointment of Counsel [Circuit Court of Saline County, CR 2006-523, Hon. Grisham Phillips, Judge], Appeal Dismissed; Motions Moot.
In 2007, appellant Donald Felix Winnett entered a plea of guilty to rape and was sentenced to 240 months' imprisonment. In 2010, appellant filed in the trial court a pro se petition asking that a deputy prosecutor be required to provide him with a copy of a DNA test that was performed in his case and a copy of the warrant for his arrest. The court denied the petition by letter order entered February 17, 2010. Appellant timely filed a notice of appeal on March 12, 2010.
On March 29, 2010, appellant filed in the trial court a pleading styled, "Affidavit of Corruption" in which he alleged that the judge at his guilty plea hearing was not a "criminal judge" but rather a juvenile chancery judge. He followed the affidavit with a "motion for corruption" filed April 6, 2010, in which he contended that his plea of guilty was coerced by threats of a lengthy prison sentence that could be imposed if he went to trial. He also repeated the allegation that the trial judge was not authorized to hear criminal cases and further contended that he was not afforded effective assistance of counsel when he entered the plea. On April 12, 2010, the court denied the relief sought. Appellant also filed a timely notice of appeal with respect to that order.
We take judicial notice that Judge Arnold was a circuit judge with authority to act in criminal matters in 2007 when the judgment of conviction was entered in appellant's case.
Appellant lodged in this court a record on appeal that covered both the February 17, 2010, and the April 12, 2010 orders. He now asks by pro se motions for a change in venue so that he will not have to proceed any longer in the trial court, for an extension of time to file his brief, for reduction of sentence, to change the charge, to dismiss the judgment of conviction, for appointment of counsel, to argue the case in person, to allege illegal search and seizure, to allege lack of jurisdiction, and for leave to make a statement of facts.
We need not address the motions as it is clear from the record that appellant could not prevail if the appeal were permitted to go forward. Accordingly, the appeal is dismissed and the motions are moot. An appeal from an order that denied a petition for postconviction relief will not be permitted to proceed where it is clear that the appellant could not prevail. Goldsmith v. State, 2010 Ark. 158 (per curiam); Watkins v. State, 2010 Ark. 156, ___ S.W.3d ___ (per curiam); Meraz v. State, 2010 Ark. 121 (per curiam); Smith v. State, 367 Ark. 611, 242 S.W.3d 253 (2006) (per curiam).
With respect to the request filed by appellant for a copy of the DNA report and arrest warrant, indigency alone does not entitle a petitioner to photocopying at public expense. Evans v. State, 2009 Ark. 529 (per curiam); Nooner v. State, 352 Ark. 481, 101 S.W.3d 834 (2003) (per curiam). To be entitled to copies at public expense, a petitioner must demonstrate a compelling need for the copies as documentary evidence to support an allegation contained in a timely petition for postconviction relief. Avery v. State, 2009 Ark. 528 (per curiam); Bradshaw v. State, 372 Ark. 305, 275 S.W.3d 173 (2008) (per curiam). Appellant cited no postconviction remedy available to him at the time he filed the motion in the trial court and otherwise made no showing of compelling need.
Appellant referred in his motion to having invoked the Arkansas Freedom of Information Act (FOIA), codified as Arkansas Code Annotated §§ 25-19-101 to-109 (Supp. 2007), in his quest for the copies. It should be noted that the FOIA does not require a court to provide photocopying at public expense. Avery v. State, 2009 Ark. 528 (per curiam) (citing Moore v. State, 324 Ark. 921, 921 S.W.2d 606 (1996) (per curiam)).
Turning to the motion of corruption and the affidavit alleging corruption, the motion and affidavit sought postconviction relief of the sort cognizable under our postconviction rule, Arkansas Rule of Criminal Procedure 37.1 (2010). Regardless of the label placed on the pleadings, a pleading is considered an application for relief under Rule 37.1 if the grounds asserted in it are cognizable under that rule. Jackson v. State, 2010 Ark. 157(per curiam); McLeod v. State, 2010 Ark. 95 (per curiam); State v. Wilmoth, 369 Ark. 346, 255 S.W.3d 419 (2007); Bailey v. State, 312 Ark. 180, 848 S.W.2d 391 (1993) (per curiam). Considered as a petition under Rule 37.1, the motion and affidavit were not timely filed.
Under Arkansas Rule of Criminal Procedure 37.1(c), where, as here, a petitioner entered a plea of guilty, a petition under the rule must be filed within ninety days of the date that the judgment of conviction was entered. The time limitations in Rule 37.1(c) are jurisdictional in nature, and, if those requirements are not met, the circuit court lacks jurisdiction to consider an untimely petition. See Smith v. State, 2010 Ark. 122 (per curiam); Lauderdale v. State, 2009 Ark. 624 (per curiam); Womack v. State, 368 Ark. 341, 245 S.W.3d 154 (2006) (per curiam). Appellant's request for postconviction relief was not timely filed, and there was no basis on which the court could grant the relief sought.
Appeal dismissed; motions moot.