ARKANSAS SUPREME COURT
No. CR 06-939
NOT DESIGNATED FOR PUBLICATION
ISAAC DEWAYNE RUSSELL
STATE OF ARKANSAS
Opinion Delivered October 12, 2006
PRO SE MOTION FOR RULE ON
CLERK [CIRCUIT COURT OF
PULASKI COUNTY, CR 2003-3247,
HON. JOHN W. LANGSTON, JUDGE]
Judgment was entered in 2004 reflecting that the Pulaski County Circuit Court had found
Isaac Dewayne Russell guilty of first-degree domestic battering and that the court had imposed a
sentence of 144 months’ imprisonment. The sentence was enhanced by an additional 48 months’
imprisonment because the offense was committed in the presence of a child, resulting in a total
sentence of 192 months’ imprisonment. The Arkansas Court of Appeals affirmed. Russell v. State,
CACR 05-241 (Ark. App. October 26, 2005).
Subsequently, petitioner timely filed in the trial court a petition for postconviction relief
pursuant to Ark. R. Crim. P. 37.1. The trial court denied the petition in an order entered on March
10, 2006. Petitioner filed his notice of appeal on April 14, 2006, and tendered the record on appeal
to this court on July 12, 2006. Our clerk correctly declined to lodge it because the notice of appeal
was late pursuant to Ark. R. App. P.–Civ. 4(a). The notice of appeal was filed on the thirty-fifth day
after the entry of the trial court’s order, making the notice of appeal untimely.
Now before us is petitioner’s pro se motion for rule on clerk. When the issue of failure to
perfect an appeal involves a notice of appeal, relief must be sought under Ark. R. App. P.–Crim. 2
or Ark. R. App. P.–Civ. 4 by filing a motion for belated appeal. See McDonald v. State, 356 Ark.
106, 146 S.W.3d 883 (2004). Accordingly, we will treat petitioner’s motion for rule on clerk as a
motion for belated appeal.
As with all matters before this court, if an appellant fails to follow correct procedural
requirements, the burden lies with the appellant to make a showing of good cause for the failure to