Opinion
CR 82-160
Opinion Delivered June 3, 2010
Pro Se Petition for Leave to Proceed Under Arkansas Rule of Criminal Procedure 37.1 [Circuit Court of Sharp County, CR 81-30], Petition Denied.
In 1982, a jury found petitioner John Thomas Moss guilty of capital felony murder and sentenced him to life imprisonment. This court affirmed that judgment. Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983). Petitioner now brings the instant petition seeking leave, as required by Arkansas Rule of Criminal Procedure 37.2 (1984), to proceed under Arkansas Rule of Criminal Procedure 37.1.
For clerical purposes, the petition has been filed under the docket number assigned to the direct appeal of the judgment. Prior to July 1, 1989, Rule 37.1 required a petitioner whose judgment of conviction had been affirmed on appeal to petition this court for relief under Rule 37.1 and gain leave from this court to proceed under the rule in the circuit court before filing a petition there.
The applicable version of Rule 37.2 provides that, when the judgment was appealed to this court as it was here, postconviction relief under the rule is only available if a petitioner seeks permission in this court to proceed within three years of the date of commitment, "unless the ground for relief would render the judgment of conviction absolutely void." Ark. R. Crim. P. 37.2. An allegation on which a judgment can be voided must present a question of such a fundamental and basic nature that the judgment is a complete nullity, such as a conviction obtained in a court without jurisdiction to try the accused or a judgment obtained in violation of double jeopardy principles. Hunes v. State, 2010 Ark. 70 (per curiam) (citing Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985)). Even questions of a constitutional dimension are not preserved beyond the direct appeal or available for collateral attack unless the issue renders the judgment void. Id. (citing Taylor v. State, 297 Ark. 627, 764 S.W.2d 447 (1989) (per curiam)).
Petitioner raises three bases for postconviction relief in his petition. He first asserts ineffective assistance of counsel for a number of alleged mistakes by trial counsel. He next contends that he was denied due process of law on two bases, as follows: that the trial court failed to properly instruct the jury as to his sentencing; that there was prosecutorial misconduct in that the prosecutor alluded to evidence that petitioner asserts was not admissible, and the trial court failed to grant a mistrial on that basis. Finally, he alleges that he was denied the assistance of an expert for purposes of determining his mental status at the time of the charged offenses. We hold that none of these bases provide grounds for relief so fundamental that the judgment would be rendered void.
In his first ground for relief, petitioner asserts ineffective assistance of counsel for failure to investigate, for inadequate experience in capital cases, for failure to present adequate materials concerning petitioner's mental health, and for failure to challenge the sentencing form or move to have the verdict set aside for sentencing error. With exception of the last claim, these allegations do not raise the type of error sufficient to void the judgment.
In order to prevail on any claim of ineffective assistance, a petitioner is required to demonstrate prejudice in that the alleged error would have impacted the outcome of the trial. See Watkins v. State, 2010 Ark. 156, ___ S.W.3d ___ (per curiam) (actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice). Here, petitioner must make a more specific demonstration of a type of prejudice so fundamental that it voids the judgment. If it is still possible that there was a reliable finding of guilt, even if petitioner were to make some showing of prejudice, then petitioner has not demonstrated a fundamental error; under those circumstances, reversal for a new trial is the appropriate remedy, not a holding that the judgment is void. See Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999) (per curiam) (discussing "structural" error and the preclusion of a harmless-error analysis for fundamental error). Other than the claim of sentencing error, petitioner's claims of ineffective assistance fail to raise this type of error.
Portions of two of petitioner's claims, the allegation that counsel was ineffective as a result of failure to challenge the sentencing procedure and the allegation alleging a violation of due process by virtue of trial error in the sentencing procedure, assert the type of fundamental error that may potentially void a judgment. Both claims pertain to issues involving the sentencing forms presented to the jury and the fact that the judgment only recited a single sentence for convictions on two charges, capital felony murder and attempted capital felony murder. If the alleged defect resulted in an illegal sentence, then the conviction would be voided.
In this case, the jury effectively returned no sentence on the charge of attempted capital murder; the only sentence returned was the sentence for the charge of capital murder. The alleged errors in this case would not void the judgment for the conviction on the capital murder charge. The verdict form provided to the jury following petitioner's conviction on the two charges provided only two alternatives for sentencing, life without parole or death. The jury was not provided with a sentencing form for the attempted murder charge. If the judgment were to be construed to reflect two verdicts, then a verdict on the charge of attempted capital murder would be void. As we did in our opinion on direct appeal, we treat the judgment here as effective only as to the single conviction for capital felony murder. Petitioner does not assert any error sufficient to void the judgment on the capital felony-murder charge.
Petitioner complains that the Arkansas Department of Correction ("ADC") has incorrectly listed the sentences that he is subject to. Any issues petitioner may have concerning the ADC's records are not germane to this petition.
Petitioner next raises, as the remaining claim of a due process violation, issues concerning prosecutorial misconduct. He alleges that the prosecutor alluded to evidence that petitioner asserts was not admissible and that the trial court should have granted a mistrial on that basis. Those issues were raised on direct appeal. Rule 37.1 does not provide an opportunity to reargue points settled on appeal. Hunes, 2010 Ark. 70. Moreover, prosecutorial misconduct is not a claim cognizable in a Rule 37.1 petition. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006).
Petitioner's last ground for relief is based on his claim that he was denied the assistance of an expert for purposes of determining his mental health status at the time of the murder. Trial counsel moved for, and the court ordered, a psychiatric evaluation. The ground for the motion was that the defendant had been deemed incompetent to stand trial in other matters in the past. In the motion, counsel specifically stated that no formal declaration of intention to raise the defense of mental disease or defect was made. The examining psychiatrist reported to the court that petitioner was without psychosis, appeared aware of the nature of the charges, was capable of assisting in preparation of his defense, and was competent to stand trial. The report also noted that, without additional information, the examining psychiatrist was unable to give an opinion on the defendant's mental state at the time of the alleged offense. Petitioner asserts error by the trial court in failing to grant additional time to gather the needed information and otherwise in failing to provide the necessary resources to obtain and evaluate the missing information.
Petitioner's complaint here is that he was unable to raise the affirmative defense of incompetence at the time of the offense. Although the constitutional offenses that petitioner alleges may have had an impact on the outcome of the trial, the alleged error is nevertheless insufficient to void the judgment. Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985) (per curiam) (The petitioner had waived the issue of whether he was unable to obtain the assistance of a competent doctor, and the issue did not present a question so fundamental as to void the conviction.). The report did provide a recommendation on petitioner's competence to stand trial. This is not a situation where the petitioner was unable to obtain a mental evaluation for that purpose. See Miller v. State, 2010 Ark. 1, ___ S.W.3d ___ (drawing a distinction between a motion declaring an intent to raise an affirmative defense of mental disease or defect at the time of the crime and a challenge to the defendant's competency to stand trial). Rather than asserting a claim that his conviction was void because he did not obtain an evaluation of his competency to stand trial, petitioner's claim is one of trial error that impacted his choice of defense strategy.
The burden is on the petitioner seeking postconviction relief to establish grounds to void the judgment of conviction. Jones v. State, 2009 Ark. 436 (per curiam). Petitioner has not established grounds for a Rule 37.1 proceeding that would void his conviction. We therefore deny the petitioner leave to proceed under Rule 37.1 because the petition is untimely. See Maxwell v. State, 298 Ark. 329, 767 S.W.2d 363 (1989).
Petition denied.
CORBIN, J., not participating.