Vincent Michael Gentry v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

April 1, 2004

VINCENT MICHAEL GENTRY

Appellant

v.

STATE OF ARKANSAS

Appellee

CACR 86-70

PRO SE PETITION TO PROCEED IN TRIAL COURT PURSUANT TO CRIMINAL PROCEDURE RULE 37.1 [CIRCUIT COURT OF SALINE, NO. CR 85-56]

PETITION DENIED

Per Curiam

In 1985, Vincent Michael Gentry was found guilty by a jury of kidnapping and attempted rape and sentenced to an aggregate term of twenty-six years' imprisonment. The court of appeals affirmed. Gentry v. State, CACR 86-70 (Ark. App. October 8, 1986).

Gentry now seeks leave from this court to proceed in the trial court with a petition for postconviction relief pursuant to Criminal Procedure Rule 37.1.1 The petition is properly filed here because the rule, as it applied to petitioners with judgments entered before July 1, 1989, which have been affirmed on appeal, requires the petitioner to obtain leave from this court before filing a postconviction petition in the trial court.2

Rule 37.2, as it applies to petitioner, provides that a petition under the rule is untimely if not filed within three years of the date of commitment, unless the petitioner states some ground for relief which, if found meritorious, would render the judgment of conviction absolutely void, i.e. a complete nullity. Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985); Collins v. State, 271 Ark. 825, 611 S.W.2d 182, cert. denied 452 U.S. 973 (1981). Trial error, even error of constitutional dimension, is not sufficient to warrant granting relief under Rule 37.2 if the issue was raised, or could have been raised, at trial and on the record on appeal. Taylor v. State, 297 Ark. 627, 764 S.W.2d 447 (1989). A claim of ineffective assistance of counsel does not entitle the petitioner to postconviction relief if not of such magnitude that counsel is conduct rendered the judgment a complete nullity. Martin v. State, 277 Ark. 175, 639 S.W.2d 738 (1982). The burden is on the petitioner to establish that there is a ground sufficient to void the judgment of conviction. Travis, supra.

Petitioner here contends that he is entitled to postconviction relief on the grounds that his attorney failed to investigate all of the crime scene evidence, that the prosecutor and others involved in his case were convicted of crimes not alleged to be related to his case after his conviction, and that a witness later recanted her testimony. None of the grounds is sufficient, even if proven, to demonstrate that the judgment of conviction rendered against petitioner was absolutely void. Accordingly, he has not met his burden of establishing that there is a cause to grant him leave to proceed in the trial court with a petition for postconviction relief.

Petition denied.

1 For clerical purposes, the petition has been filed under the docket number assigned to the direct appeal of the judgment when it was lodged in the Arkansas Court of Appeals in 1986.

2 Criminal Procedure Rule 37 was abolished by this court effective July 1, 1989. In the Matter of the Abolishment of Rule 37 and the Revision of Rule 36 of the Arkansas Rules of Criminal Procedure, 299 Ark. Appx. 573, 770 S.W.2d 148 (1989). Rule 37 was reinstated in a revised form on January 1, 1991. In the Matter of the Reinstatement of Rule 37 of the Arkansas Rules of Criminal Procedure, 303 Ark. Appx. 746, 797 S.W.2d 458 (1990). The revised rule does not require petitioners to gain leave of this court before proceeding in the trial court.