Nelson v. State
2013 Ark. 316
| Ark. | 2013Background
- Brian N. Nelson was convicted by a jury of four counts of sexual assault of a minor and sentenced to an aggregate 672 months; his direct appeal was affirmed.
- Nelson timely filed a pro se Rule 37.1 petition for postconviction relief in the Grant County Circuit Court.
- The circuit court denied the Rule 37.1 petition and, by rule, was required to mail a copy of the denial to Nelson under Ark. R. Crim. P. 37.3(d).
- Nelson did not receive notice of entry of the denial and therefore did not file a timely appeal from that denial; he later moved for leave to proceed with a belated appeal.
- The State (Attorney General) did not respond to Nelson’s motion or produce proof (e.g., clerk affidavit) that the denial had been mailed.
- The Supreme Court granted the motion for a belated appeal, directing the clerk to lodge the record and set a briefing schedule, because the record was silent and the court assumes a lack of proper notice when the respondent fails to refute the allegation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nelson established good cause to pursue a belated appeal of the denial of his Rule 37.1 petition | The circuit court failed to mail him the order denying his Rule 37.1 petition as required by Ark. R. Crim. P. 37.3(d), so he did not timely appeal | State did not file a response or produce proof that the order was mailed | Motion granted: record silent and State produced no mailing proof; failure to comply with Rule 37.3(d) establishes good cause for a belated appeal |
Key Cases Cited
- Nelson v. State, 384 S.W.3d 534 (Ark. 2011) (affirming Nelson’s conviction on direct appeal)
- Garner v. State, 737 S.W.2d 637 (Ark. 1987) (burden is on appellant to show good cause for failure to file timely appeal)
- Porter v. State, 698 S.W.2d 801 (Ark. 1985) (addressing consequences when record is silent about mailing of notice)
- Scott v. State, 664 S.W.2d 475 (Ark. 1984) (Rule 37.3(d) intended to provide prompt, consistent notice to petitioners)
- Chiasson v. State, 798 S.W.2d 927 (Ark. 1990) (failure to abide by Rule 37.3(d) may establish good cause for belated appeal)
- Thompson v. State, 655 S.W.2d 424 (Ark. 1983) (per curiam) (procedural responsibility for timely appeals and showing good cause)