Charles L. Johnson v. State of Arkansas
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ARKANSAS SUPREME COURT
No.
CR 06-389
NOT DESIGNATED FOR PUBLICATION
CHARLES L. JOHNSON
Appellant
Opinion Delivered
June 22, 2006
v.
PRO SE MOTION TO FILE HANDWRITTEN BRIEF [CIRCUIT COURT
OF PULASKI COUNTY, CR 2003-2774,
HON. WILLARD PROCTOR, JR.,
JUDGE]
STATE OF ARKANSAS
Appellee
APPEAL DISMISSED; MOTION MOOT
PER CURIAM
In 2004, judgment was entered reflecting that Charles L. Johnson had been found guilty of
second-degree forgery by the court in a trial to the bench. Appellant was sentenced as a habitual
offender to 10 years’ imprisonment. The Arkansas Court of Appeals affirmed. Johnson v. State,
CACR 04-945 (Ark. App. April 13, 2004). Subsequently, appellant timely filed in the trial court a
pro se petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1. Therein, appellant
maintained that his trial counsel and appellate counsel rendered ineffective assistance of counsel.
After a hearing, the trial court denied the petition, and appellant, proceeding pro se, has lodged an
appeal in this court from that order.
Now before us is appellant’s pro se motion to file a partially-handwritten brief in this matter.
We need not consider the motion as it is apparent that appellant could not prevail in this appeal if
it were permitted to go forward because he failed to demonstrate a legitimate basis for the petition.
Accordingly, we dismiss the appeal and hold the motion moot. This court has consistently held that
an appeal from an order that denied a petition for postconviction relief will not be permitted to go
forward where it is clear that the appellant could not prevail. See Pardue v. State, 338 Ark. 606, 999
S.W.2d 198 (1999) (per curiam); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996) (per curiam).
In his Rule 37.1 petition, appellant argued that trial counsel and appellate counsel were
ineffective with regard to handling a charge of theft of property filed against appellant. Appellant,
the pastor and founder of Holy Anointing Deliverance Church, retrieved a church bank account
checkbook from the home he shared with Ms. McCauley, appellant’s then-wife. Ms. McCauley was
the sole signatory on the checking account. At the bank, appellant wrote a check to “cash” on the
church’s account to which he signed his name as the signatory, and then endorsed the back of the
check with his own signature. He returned to the bank a short time later, retrieved the check with
his signature and then signed Ms. McCauley’s name above his own on the signature line. Appellant
maintained that he was convicted of a second offense, theft of property, that stemmed from his taking
the church’s bank account checkbook. However, in the case presently before the court, appellant was
charged only with forgery, not theft of property.1
Appellant’s complaints about his counsels’ assistance are related to a charge not included in
the case on appeal. Thus, appellant’s claim of ineffective assistance of counsel does not have a basis
in fact, and appellant would be unable to prove that either counsel rendered ineffective assistance.
Appeal dismissed; motion moot.
1
We note that in Pulaski County Circuit Court case number CR 2003-1947 appellant was
charged with third-degree domestic battery, resisting arrest and theft of property. The theft of
property charge in that case was related to appellant’s taking the church bank account checkbook.
The trial court held its bench trial on both cases at the same time. However, in his notice of
appeal, appellant only appealed case number CR 2003-2774 that did not include the theft of
property charge.
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