Cite as 2017 Ark. 278
SUPREME COURT OF ARKANSAS.
No. CR-17-450
Opinion Delivered October 19, 2017
ALI MARTIN MATAR
PETITIONER
PRO SE MOTION FOR BELATED
V. APPEAL AND RULE ON CLERK
[BENTON COUNTY CIRCUIT
COURT, NO. 04CR-14-777]
STATE OF ARKANSAS
HONORABLE BRAD KARREN,
RESPONDENT JUDGE
MOTION TREATED AS MOTION
FOR BELATED APPEAL AND
DENIED.
COURTNEY HUDSON GOODSON, Associate Justice
Petitioner Ali Martin Matar asks in a pro se motion for belated appeal and rule on
clerk that he be permitted to proceed with an appeal of the order of the Benton County
Circuit Court entered August 17, 2016, denying his petition and amended petition for
postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2015) even
though he did not file a notice of appeal until October 14, 2016. The motion is treated as
a motion for belated appeal under Arkansas Rule of Appellate Procedure–Criminal 2(e)
(2016), rather than as a motion for rule on clerk, because the notice was not timely filed.
See Bloodman v. State, 2010 Ark. 169, 370 S.W.3d 174. Arkansas Rule of Appellate
Procedure–Criminal 2(a) (2016) provides that a notice of appeal must be filed within thirty
days of the date of the entry of the order from which the appeal is taken. Matar contends
that he should be allowed to perfect the appeal because he did not receive a copy of the trial
court’s order until September 9, 2016. If a notice of appeal is not timely filed, the burden
Cite as 2017 Ark. 278
is on the petitioner to establish good cause for the failure to comply with proper procedure.
See Dodson v. Norris, 374 Ark. 501, 288 S.W.3d 662 (2008). Because Matar has not
established good cause for his delay in acting in this matter, the motion is denied.
Rule 37.3(d) requires the trial court to promptly mail a copy of the order entered on
a Rule 37.1 petition to the petitioner. The language in the rule is mandatory, and the failure
of the trial court to comply with Rule 37.3(d) constitutes good cause to excuse the
petitioner’s failure to file a timely notice of appeal. When the record is silent or
inconclusive, and the State does not provide an affidavit from the clerk of the circuit court
or some other proof that the order was mailed without undue delay, this court will assume
that the petitioner was not properly notified. Here, there is no indication in the record or
the State’s response to demonstrate that Matar was promptly notified under Rule 37.3(d)
that the order had been entered on August 17, 2016. Nevertheless, Matar’s motion is denied
because Matar, by his own admission, received the order a week before the thirty-day period
to file a timely notice of appeal expired, but he delayed more than a month before filing his
notice with the clerk. Clearly, he received the order before the time to file a notice of
appeal elapsed, but he did not act for another month, and he has not established a good
cause for not doing so.
Motion treated as motion for belated appeal and denied.
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