Johnson v. State
2016 Ark. 353
| Ark. | 2016Background
- In 2012, Mark David Johnson pleaded guilty with sentencing to be determined by a jury and was later sentenced to consecutive life terms for first-degree murder plus additional terms for attempted murder and battery.
- His direct appeal of the sentence was affirmed by this Court in Johnson v. State, 2013 Ark. 494.
- In 2014 Johnson filed a timely, verified Rule 37.1 postconviction petition in Drew County; the trial court entered an order dismissing the petition on April 27, 2016.
- Johnson did not file a notice of appeal within 30 days and moved pro se in this Court for permission to proceed with a belated appeal, asserting he was not provided prompt notice of the Rule 37.1 dismissal order.
- The State relied on a notation in the court order indicating a copy was to be sent and on the clerk’s alleged practice of mailing such orders, but produced no affidavit or definitive proof of actual mailing or the mailing date.
- The Supreme Court held the record was silent as to actual notice, found the State failed to show proper notification under Rule 37.3(d), and granted the motion for a belated appeal, directing the clerk to lodge the appeal and set a briefing schedule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a belated appeal should be allowed because petitioner did not receive prompt notice of the Rule 37.1 dismissal | Johnson: did not receive copy of dismissal order in time to file a timely notice of appeal | State: notation on the order shows it was to be sent; clerk’s practice is to mail such orders, so mailing should be presumed | Court: notation alone and alleged practice are insufficient without affidavit or definitive proof of mailing; grant belated appeal |
Key Cases Cited
- Johnson v. State, 2013 Ark. 494 (direct appeal of sentence affirmed)
- Bean v. State, 2014 Ark. 440 (Rule 2(e) good-cause standard for belated appeals)
- Nelson v. State, 2013 Ark. 316 (Rule 37.3(d) requires prompt notice to petitioner of Rule 37.1 orders)
- Green v. State, 2015 Ark. 198 (circuit-court failure to provide notice can excuse untimely notice of appeal)
- Horton v. State, 2016 Ark. 193 (granting belated appeal where record lacked proof of mailing)
- Dennis v. State, 2016 Ark. 44 (motion treated as Rule 2(e) motion for belated appeal)