Opinion
CR 08-1398
Opinion Delivered November 5, 2009
Pro Se Motion for Extension of Brief Time [Circuit Court of Pulaski County, Cr 2006-3489, Cr 2006-3655, Hon. Barry A. Sims, Judge], Appeal Dismissed; Motion Moot.
In 2008, appellant Albert Lee Johnson entered an unconditional plea of guilty to eight charges in two criminal cases. He was sentenced as a habitual offender to an aggregate term of 300 months' imprisonment.
Subsequently, appellant timely filed in the trial court a verified pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. The trial court denied the petition without a hearing, and appellant has lodged a pro se appeal from the order.
Previously, we granted a petition for writ of certiorari for missing portions of the record in this appeal, and the supplemental record has now been lodged. Currently before us is appellant's motion for an extension of time to file his brief-in-chief. We need not consider the motion, however, as it is clear that appellant could not be successful on appeal. The appeal is dismissed and the motion is moot. An appeal from an order that denied a petition for a postconviction remedy will not be permitted to go forward where it is clear that the appellant could not prevail. Anderson v. State, 2009 Ark. 493 ((per curiam); Johnson v. State, 362 Ark. 453, 208 S.W.3d 783 (2005) (per curiam).
As grounds for relief in the Rule 37.1 petition, appellant alleged that his trial counsel was ineffective. In support of the claim, appellant maintained that he entered the guilty pleas more than twelve months after his arrest, which violated the speedy-trial rule set forth in Arkansas Rule of Criminal Procedure 28.1. On this basis, he argued that the charges filed against him should have been dismissed, and asserted that trial counsel was consequently ineffective for failing to raise the speedy-trial issue prior to the guilty plea hearing.
Under the standard for demonstrating ineffective assistance of counsel, an appellant must prove that counsel's performance was deficient and, as a result, appellant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); French v. State, 2009 Ark. 443 (per curiam); Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003). Counsel is presumed effective, and allegations without factual substantiation are insufficient to overcome that presumption. Nelson v. State, 344 Ark. 407, 29 S.W.3d 791 (2001) (per curiam). The burden is on the appellant to provide facts that affirmatively support his or her claims of prejudice, and conclusory statements cannot form the basis of postconviction relief. Long v. State, 294 Ark. 362, 742 S.W.2d 942 (1988). In the instant matter, determining whether counsel was ineffective under Strickland is predicated on whether appellant was in fact tried in violation of the speedy-trial rule. See Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001). Without such a showing, counsel is not ineffective for failing to make an argument that is meritless, either at trial or on appeal. Id.
Under the speedy-trial rule, if a criminal defendant is not brought to trial within a certain time set out in the rule, the charges shall be dismissed with an absolute bar to prosecution. Ark. R. Crim. P. 28.1(c); Ark. R. Crim. P. 30.1. Criminal Procedure Rules 28.2 and 28.3 set out the calculation of time under the speedy-trial rule and authorize time periods to be excluded from calculation that result from necessary delays.
The record in this matter shows that appellant was arrested in both criminal cases on August 3, 2006. Appellant was arraigned in CR 2006-3489 on September 12, 2006, and on September 25, 2006, in CR 2006-3655. He entered the pleas of guilty in both cases on January 7, 2008.
For the purpose of determining time under Rule 28.1 here, the speedy-trial clock commenced on the date of appellant's arrest and ended on the day he entered the guilty pleas. Ark. R. Crim. P. 28.2(a). A total of 523 days elapsed during that time frame, which constitutes the initial speedy-trial time calculation. This time period exceeded the one-year limitation in Rule 28.1(c) by 158 days. If trial counsel had moved for a dismissal below, he would have made a prima facie showing of a violation of the rule. At that point, the burden would have shifted to the State to show good cause for the delay. Ark. R. Crim. P. 28.3; see Dodson v. State, 358 Ark. 372, 191 S.W.3d 511 (2004); see also Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000) (per curiam). If at least 158 days are properly excluded under Rule 28.3, then appellant would not have established that his case was concluded outside the required period. See Camargo, 346 Ark at 126, 55 S.W.3d at 261.
Here, pursuant to Arkansas Rule of Criminal Procedure 28.3(a), the speedy-trial clock was initially tolled in each case at the plea and arraignment. At that time, appellant entered a plea of not guilty by reason of mental disease or defect, and notified the trial court that he sought to have an "Act III" mental evaluation conducted pursuant to Arkansas Code Annotated § 5-2-305 (Repl. 2006). The clock then resumed on December 4, 2006, when appellant was found competent to proceed to trial. In CR 2006-3489, this time period covered September 12, 2006, until December 4, 2006, for a total of 84 days that are excluded from the speedy trial calculation. In CR 2006-3655, the pertinent time period covered September 25, 2006, until December 4, 2006, for a total of 71 days.
Next, on March 12, 2007, trial counsel notified the court that appellant reaffirmed his plea of not guilty by reason of mental disease or defect in both cases. Counsel then informed the trial court that he was attempting to locate and obtain appellant's prior mental evaluations from the Arkansas Department of Correction and the Arizona Department of Corrections in order to further review appellant's mental condition. Counsel asked that the jury trial be continued for this reason, and the trial court granted counsel's request. On April 16, 2007, the time for continuance was extended while counsel continued his efforts to obtain the pertinent records. After receiving only a portion of the test records sought, on July 9, 2007, trial counsel asked that a mental evaluation hearing be conducted. At the "Act III" hearing on September 4, 2007, appellant was found to be mentally fit to proceed to trial for the second time.
The trial court stated at each pertinent hearing that the speedy trial clock was being tolled, or continued to be tolled. A delaying act that is memorialized by a record taken at the time it occurred may satisfy the requirements of Rule 28.3. See Camargo, 346 Ark at 127-128, 55 S.W.3d at 262. Also, this time was properly excluded from the speedy-trial time calculation under either Criminal Procedure Rule 28.3(a) or 28.3(c), or pursuant to section 5-2-305(a)(1). The statute is applicable as it requires a court to "immediately suspend any further proceedings in a prosecution" if a defendant notifies the court that he or she "intends to rely upon the defense of mental disease or defect," or "will put in issue his or her fitness to proceed." Ark. Code Ann. §§ 5-2-305(a)(1)(A), (C); see Camargo, 346 Ark at 127, 55 S.W.3d at 261. Therefore, it is clear that the entire 177-day period from the March 12, 2007, hearing to the September 4, 2007, hearing was properly excluded from the calculation of the speedy-trial period under one of the three grounds for exclusion.
In the Rule 37.1 petition, appellant's argument was based solely upon the total time that elapsed between the date of his arrest and the date that he entered the pleas. The reliance was misplaced. The two excluded periods in which the speedy-trial clock was tolled exceeded the 158 days required to establish that the speedy-trial rule was not violated. In CR 2006-3489, a total of 261 days was excluded, and appellant entered the guilty pleas 262 days after his arrest, which is fewer than the 365 days allowed under the Rule 28.1(c) speedy trial limits. Similarly, in CR 2006-3655, a total of 248 days was excluded, and appellant entered the guilty pleas 275 days after his arrest, which also does not violate the speedy trial rule.
In sum, appellant failed to establish that the speedy-trial rule was violated. He therefore would not be able to demonstrate that trial counsel was ineffective for failing to raise a speedy-trial argument prior to entry of the guilty pleas, as counsel was not ineffective for failing to raise an argument that has no merit. See Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004).
Appeal dismissed; motion moot.