                                       Cite as 2014 Ark. 538

                   SUPREME COURT OF ARKANSAS
                                           No.   CR-14-15

ARTHUR LEE NEWTON                                    Opinion Delivered December   18, 2014
                                 APPELLANT
                                                     PRO SE APPEAL FROM THE DREW
V.                                                   COUNTY CIRCUIT COURT
                                                     [NO. 22CR-10-155]

STATE OF ARKANSAS                                    HONORABLE SAM POPE, JUDGE
                                   APPELLEE
                                                     AFFIRMED.


                                          PER CURIAM


       In 2011, appellant Arthur Lee Newton was found guilty by a jury in the Drew County

Circuit Court of sexual indecency with a child and sexual assault in the second degree. He was

sentenced to an aggregate term of 288 months’ imprisonment. The Arkansas Court of Appeals

affirmed. Newton v. State, 2012 Ark. App. 91. The mandate issued on February 15, 2012.

       On July 9, 2012, appellant filed in the trial court a pro se petition for postconviction relief

pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). In the petition, appellant alleged

that he was entitled to relief because trial counsel was ineffective based on the failure to call a

key witness to testify, the victim’s statements were coerced, the prosecuting attorney examined

the victim at trial with regard to her prior statement, and he was made to sign a “Sex Offender

Acknowledgment Form” before he was found guilty of the charged crimes. The trial court

dismissed the petition with prejudice based on a finding that it was untimely, and appellant did

not appeal the order.

       Subsequently, appellant, while incarcerated in a facility in Lee County, filed in the Lee
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County Circuit Court a second pro se petition for postconviction relief, and the circuit court

denied the petition. Appellant lodged an appeal here, and we dismissed the appeal on the

ground that it was clear from the record that appellant could not succeed if the appeal were

permitted to go forward as the circuit court did not have jurisdiction to consider the petition.

Newton v. State, 2013 Ark. 320 (per curiam).

       On September 20, 2013, appellant filed in the trial court a third pro se petition for

postconviction relief in which he made substantially the same allegations as he raised in his first

postconviction petition, namely that he was entitled to relief because counsel was ineffective in

failing to call key witnesses to testify, the victim’s statement was coerced, the prosecuting

attorney engaged in leading questions during his examination of the victim at trial, he was made

to sign a “Sex Offender Acknowledgment Form” before the jury found him guilty of the

charged offenses, and the jury was made aware that he had signed the acknowledgment form.

Appellant also seemed to allege that his first petition was untimely because he had been ill and

was in the infirmary. Considering the petition to be an application for relief pursuant to Rule

37.1, the trial court denied and dismissed the petition. In its order, the trial court, recognizing

that it had previously found that the first Rule 37.1 petition was untimely, found that appellant

could not file a subsequent petition for postconviction relief when a Rule 37.1 petition alleging

essentially the same claims had already been denied as being untimely. Appellant lodged an

appeal from that order.

       On appeal, appellant contends that he is entitled to postconviction relief because his trial

attorney failed to call key witnesses to testify and allowed the prosecuting attorney to badger a



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witness at trial. Appellant also alleges, as he did in his petition, that he failed to timely file his

first petition because he had been ill and was in the infirmary. Appellant contends for the first

time on appeal that the untimely filing of his first petition should be excused based on

ineffective assistance of counsel during “initial-review collateral proceedings” because, after his

conviction was affirmed, his attorney told him that he had no other “options” and abandoned

him. Because arguments raised for the first time on appeal could not have been considered by

the lower court, they will not be addressed by this court. Hill v. State, 2014 Ark. 420 (per

curiam); Green v. State, 2013 Ark. 455 (per curiam).

       Appellant’s claim of ineffective assistance of counsel is cognizable under our

postconviction rule, Rule 37.1.1 A petition that states a claim for postconviction relief

cognizable under Rule 37.1 is governed by that rule regardless of the label placed on it by a

petitioner. Ussery v. State, 2014 Ark. 186 (per curiam); Newton, 2013 Ark. 320. Rule 37.2(b)

provides that all grounds for relief available to a petitioner under the Rule must be raised in his

or her original petition unless the original petition was denied without prejudice to filing a

second petition. If a first petition under the Rule is denied without leave to proceed with a

second petition, a petitioner under the Rule is barred from submitting a subsequent petition.

Ewells v. State, 2014 Ark. 351, 439 S.W.3d 667 (per curiam); Cooper v. State, 2013 Ark. 243 (per

curiam). Moreover, pursuant to Arkansas Rule of Criminal Procedure 37.2(c), when there was

an appeal from a judgment of conviction, a petition for relief must be filed in the trial court



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         The remaining claims alleged in the petition were allegations of trial error, and such
allegations should have been raised in the trial court at the time of trial. Trial error is a matter
for the trial court to address. See Nickelson v. State, 2013 Ark. 252 (per curiam).
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within sixty days of the date that the mandate was issued by the appellate court. The time

limitations imposed in Rule 37.2(c) are jurisdictional in nature, and, if the petition is not filed

within that period, a trial court lacks jurisdiction to grant postconviction relief. Ewells, 2014 Ark.

351, 439 S.W.3d 667. A petitioner, even one proceeding pro se, must conform to the prevailing

rules of procedure. See Tarry v. State, 346 Ark. 267, 57 S.W.3d 163 (2001). Here, appellant’s first

petition was dismissed as untimely with prejudice, and appellant did not appeal that order.

Subsequently, the September 20, 2013 petition was likewise untimely as it was not filed within

the sixty-day period; thus, the trial court had no jurisdiction to grant the relief sought. When the

trial court lacks jurisdiction, the appellate court also lacks jurisdiction. Pruitt v. State, 2014 Ark.

258 (per curiam).

       To the extent that appellant is seeking appointment of counsel for the appeal,

postconviction matters are considered civil in nature, and there is no absolute right to

appointment of counsel. Anthony v. State, 2014 Ark. 195 (per curiam). We have held that, if an

appellant makes a substantial showing that he is entitled to relief in a postconviction appeal and

that he cannot proceed without counsel, we will appoint counsel. Evans v. State, 2014 Ark. 6.

Here, because the trial court did not have jurisdiction to act on the merits of the petition and this

court does not have jurisdiction in the matter, appellant cannot meet his burden of establishing

that he is entitled to appointment of counsel.

       Affirmed.

       Arthur Lee Newton, pro se appellant.

       Dustin McDaniel, Att’y Gen., by: LeaAnn J. Adams, Ass’t Att’y Gen., for appellee.



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