Graham v. State, CR78-36

• Decision Date: 30 October 1978
• Docket Number: No. CR78-36,CR78-36
• Parties: Daniel Lon GRAHAM, Petitioner, v. STATE of Arkansas, Respondent.
• Court: Arkansas Supreme Court

Page 385

572 S.W.2d 385

264 Ark. 489

Daniel Lon GRAHAM, Petitioner, v. STATE of Arkansas, Respondent.

No. CR78-36.

Supreme Court of Arkansas.

Oct. 30, 1978.

Harold L. Hall, Little Rock, for petitioner.

Bill Clinton, Atty. Gen., Little Rock, for respondent.

PER CURIAM.

On April 3, 1978, this court granted Daniel Lon Graham's petition for a belated appeal from his conviction, in August, 1970, in the Circuit Court of Prairie County upon a charge of kidnapping for ransom, which was alleged to have occurred on December 24, 1969. The petition had been filed on March 28, 1978, by counsel appointed for petitioner by this court on March 20, 1978, to take appropriate steps to seek a belated appeal for Graham. When we granted the belated appeal, it was ordered that the record be prepared and lodged with this court within 90 days. On September 7, 1978, petitioner filed the present petition, praying that this conviction be vacated and that he be discharged from the life sentence then imposed and relieved from trial on the charge on the ground of double jeopardy. The ground for the petition is that the record in this case has not been prepared and lodged in this court, although more than 90 days have elapsed since April 3, 1978.

In response to Graham's petition, the state alleges that good reason for the delay in preparation of the transcript of the record exists. This response is supported by an affidavit of the Prosecuting Attorney of the Seventeenth Judicial District, of which Prairie County is a part. According to this affidavit, the prosecuting attorney understands that the trial transcript has been lost, or otherwise misplaced, and is unavailable. His investigation reveals that there were between 15 and 25 witnesses who testified in the case, many of whom were from Fayetteville and the general area of Washington County. In his opinion, the reconstruction of a trial transcript would require no less than four weeks of concentrated effort.

Petitioner's prayer that his conviction be vacated is denied. It is the normal burden of an appellant to take appropriate action to supply a transcript of the proceedings at a trial resulting in the judgment from which he appeals. Nothing in the orders of this court, or of the United States District Court for the Eastern District of Arkansas, has, in any way, relieved Graham of this burden. It is unusually appropriate that this appellant have this burden.

The inaction of Graham has made the meeting of his burden more difficult. Graham wrote the clerk of this court on April 9, 1971, requesting a transcript of his trial. This request did not mention an appeal. The clerk of this court responded to this request, advising Graham that counsel is appointed and transcripts furnished only in connection with appeals. He was specifically advised thus:

If you are requesting an appeal, you should so state, at which time your request for appointment of counsel and transcript will be considered.

It is clear that Graham did nothing to follow up on this request prior to March 30, 1973. Significantly, the action taken then followed his trial and conviction of a crime in which the death penalty was imposed and the reduction of that sentence by this court to life imprisonment on November 20, 1972. See Graham v. State, 253 Ark. 462, 486 S.W.2d 678. He then sought a writ of mandamus from this court to the Circuit Court of Prairie County to hold a hearing on a petition for postconviction relief. While he asserted numerous grounds for postconviction relief, which he contended were violations of the due process clause of the United States Constitution, it does not appear that denial of the right to appeal was one of them. This petition was denied because it was defective. Graham renewed his efforts for postconviction relief by a letter to the clerk of this court in June of 1974. It appears that this is the first time that he asserted any unconstitutional denial of his right to appeal. He was directed, on June 25, 1974, to address his petition for a belated appeal to the Circuit Court of Prairie County. On September 16, 1974, he filed a petition for writ of mandamus in this court, seeking to require the Circuit Court of Prairie County to act on his petition, which he alleged had been filed in July, 1974. On May 4, 1973, the Circuit Court of Prairie County had denied a petition by Graham for postconviction relief and referred to previous denials of such relief, one of which was by order entered in that court on May 17, 1971. This court denied Graham's petition for mandamus on December 20, 1974. There was never any appeal taken from any of the orders of the Circuit Court of Prairie County on Graham's petitions for postconviction relief.

It is quite clear that difficulties in now obtaining a transcript of the proceedings in Graham's trial in the Circuit Court of Prairie County are as much attributable to Graham as to anyone else. He was clearly advised more than seven years ago that, if he intended to appeal his conviction in Prairie County, this court would consider his request for a transcript and for appointment of counsel. He did not at that time state that he desired to appeal and his belated and desultory attempts thereafter have certainly contributed to his present difficulties. It is unreasonable to expect that stenographic notes or recordings be preserved for such a long time, when a court reporter has no notice that a transcript may be required.

This court has granted Graham a very belated appeal and has appointed competent counsel for its prosecution. If no stenographic record was made, then Ark.Stat.Ann. § 27-2127.11 (Repl.1962) governs. It reads:

Appeals when no stenographic report was made. In the event no stenographic report of the evidence or proceedings at a hearing or trial was made, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection, for use instead of a stenographic transcript. This statement shall be served on the appellee who may serve objections or propose amendments thereto within 10 days after service upon him. Thereupon the statement, with the objections or proposed amendments, shall be submitted to the trial court for settlement and approval and as settled and approved shall be included by the clerk of the court in the record on appeal.

This statute clearly places the burden of obtaining or reconstructing a record on the appellant. If this statute is inapplicable, there are other avenues for the reconstruction of the record in this case, based to a considerable extent on Ark.Stat.Ann. §§ 27-1750, -1751 (Repl.1962). The present statutes have not eliminated the bystander's bill of exceptions as a means of presenting petitioner's contentions to this court on appeal. See Tarkington v. State, 250 Ark. 972, 469 S.W.2d 93; Pearson v. State, 119 Ark. 152, 178 S.W. 914; Bowen v. State, 205 Ark. 380, 168 S.W.2d 836; Sneed v. State, 159 Ark. 65, 255 S.W. 895; Vaughan v. State, 57 Ark. 1, 20 S.W. 588. The matter of reconstruction of the record in this matter cannot be conducted in this court. Appropriate action in this matter should be taken by petitioner in the trial court.

HOWARD, Justice, dissenting.

I am compelled to dissent in the action taken by the majority on the petitioner's motion to vacate his conviction and discharge him from the Department of Correction. While I do not agree that his conviction should be vacated, at this time, I do not see any merit or objectivity in the approach taken by the majority in this matter. Consequently, I set out the following in support of my views:

On December 14, 1977, an order was entered by the United States District Court, Eastern District of Arkansas, providing, in relevant part, as follows:

"It is therefore Ordered that the final decision in this case be, and it is hereby, held in abeyance for 120 days from the date this Memorandum and Order is entered. It...