Carter v. State
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Cite as 2010 Ark. 231
SUPREME COURT OF ARKANSAS
No.
CR 10-195
Opinion Delivered
EDWARD LEE CARTER
Appellant
v.
STATE OF ARKANSAS
Appellee
May 13, 2010
PRO SE MOTIONS FOR
PHOTOCOPYING AT PUBLIC
EXPENSE, EXTENSION OF TIME TO
FILE BRIEF, ACCESS TO THE
RECORD, TO AMEND PETITION
FOR ACCESS TO THE RECORD,
AND TO AMEND MOTION FOR
EXTENSION OF TIME TO FILE
BRIEF [CIRCUIT COURT OF
GARLAND COUNTY, CR 08-142,
HON. JOHN HOMER WRIGHT,
JUDGE]
APPEAL DISMISSED; MOTIONS
MOOT.
PER CURIAM
Edward Lee Carter was found guilty by a jury of aggravated robbery in violation of
Arkansas Code Annotated § 5-12-102(a) (Repl. 2006), and he was sentenced to 360 months’
imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals
affirmed, and its mandate was issued on November 10, 2009. Carter v. State, 2009 Ark. App.
683. Also on November 10, 2009, appellant filed a petition for postconviction relief pursuant
to Arkansas Rule of Criminal Procedure 37.1 (2009).1 That petition was denied by the trial
1
Appellant then filed an amended Rule 37.1 petition on November 30, 2009; however
appellant did not seek leave of the court to file an amended petition as required by Arkansas Rule of
Criminal Procedure 37.2(e) (2010), and the trial court’s order does not reflect that the amended
petition was ever considered. We therefore only consider the initial Rule 37.1 petition in
Cite as 2010 Ark. 231
court on December 4, 2009, without an evidentiary hearing, and appellant timely filed an
appeal in this court from that denial. He subsequently filed the motions for photocopying at
public expense, for extension of time in which to file his brief, for access to the record, to
amend his previous motion for access to the record, and to amend his motion for extension
of time in which to file his brief that are now before us.
Before we address appellant’s motions, however, we must determine whether a
petition for postconviction relief is timely when it is filed on the same day that the court of
appeals issues its mandate, inasmuch as a circuit court lacks jurisdiction to rule on a petition
filed before the mandate is issued. See Doyle v. State, 319 Ark. 175, 176, 890 S.W.2d 256, 257
(1994) (per curiam) (citing Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993)). We hold
that it is timely.
Where a direct appeal is taken following a conviction, “a petition claiming relief under
this rule must be filed in the circuit court within sixty (60) days of the date the mandate was
issued by the appellate court.” Ark. R. Crim. P. 37.2 (c) (2009); see Tillman v. State, 2010
Ark. 103 (per curiam). The time limitations in Rule 37.2(c) are jurisdictional in nature, and,
where they are not met, a trial court lacks jurisdiction to grant postconviction relief. DeLoach
v. State, 2010 Ark. 79 (per curiam) (citing Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303
(1989)); see also Croft v. State, 2010 Ark. 83 (per curiam). If a trial court lacks jurisdiction due
to a petitioner’s violation of the time limits in Rule 37.2(c), this court likewise lacks
determining whether appellant pleaded grounds sufficient to support relief under Rule 37.1.
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jurisdiction to reach the merits of the petition for postconviction relief on appeal. See Lawhon
v. State, 328 Ark. 335, 942 S.W.3d 864 (2002) (per curiam).
The first rule in considering the meaning and effect of a statute is to construe it just as
it reads, giving the words their ordinary and usually accepted meaning in common language.
See State v. Britt, 368 Ark. 273, 244 S.W.3d 665 (2006) (quoting Crawford v. State, 362 Ark.
301, 208 S.W.3d 146 (2005)). When the language of a statute is plain and unambiguous, there
is no need to resort to rules of statutory construction. Id. The plain meaning of the word
“within,” as it is used in Rule 37.2(c) is “between the beginning and end of [a period of
time], in the course of, during.” The Oxford English Dictionary (2d ed. 1989) available at OED
Online, http://dictionary.oed.com/cgi/entry/50286345 (last visited March 9, 2010). Thus,
Rule 37.2(c) requires a petition for postconviction relief under Rule 37.1 to be filed between
the beginning and end of the sixty-day period following the appellate court’s issuance of its
mandate.
This court has held that a mandate is effective as of its date of issuance. See, e.g.,
Barclay v. Farm Credit Servs., 340 Ark. 65, 8 S.W.3d 517 (2000). Accordingly, the trial court
regains jurisdiction as of the date the mandate is issued by the appellate court rather than the
date the mandate is filed in the trial court. See generally Doyle v. State, 319 Ark. 175, 890
S.W.2d 256 (1994) (per curiam). The purpose of Rule 37.2(c) is to impose a deadline for
filing a petition under Rule 37.1; if the period for calculating that deadline begins on the day
the mandate is issued, it is axiomatic that the period in which a petitioner may file his Rule
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37.1 petition begins on the same day. Accordingly, in the instant case, appellant filed his
petition for postconviction relief on the day the sixty-day limit imposed by Rule 37.2(c)
began to run, and we hold that this petition was timely.
We turn, then, to appellant’s motions for photocopying at public expense and for
access to the record. Specifically, appellant, who claims he is indigent, seeks a copy of the
brief-in-chief that his attorney filed in appellant’s direct appeal, a copy of the opinion issued
by the court of appeals, and a copy of the record so that he may complete his brief-in-chief,
and he requests that all copies be provided at public expense.
While we have consistently held that indigency alone does not entitle a petitioner to
photocopying at public expense, see, e.g., Gardner v. State, 2009 Ark. 488 (per curiam), we
need not consider whether appellant is otherwise entitled to such copies because it is clear that
appellant could not prevail on his appeal. An appeal of the denial of postconviction relief will
not be permitted to go forward where it is clear that the appellant could not prevail. Stuart
v. State, 2009 Ark. 492 (per curiam) (citing Bunch v. State, 370 Ark. 113, 257 S.W.3d 533
(2007) (per curiam)). Accordingly, we dismiss the appeal, and the motions are moot.
In an appeal from a trial court’s denial of postconviction relief on a claim of ineffective
assistance of counsel, the sole question presented is whether, based on a totality of the
evidence under the standard set forth by the U.S. Supreme Court in Strickland v. Washington,
466 U.S. 668 (1984), the trial court clearly erred in holding that counsel’s performance was
not ineffective. Watkins v. State, 2010 Ark. 156 (per curiam), __ S.W.3d __; see Jammett v.
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State, 2010 Ark. 28, __ 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. State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007). Under
the Strickland test, a claimant must show that counsel’s performance was deficient, and the
claimant must also show that this deficient performance prejudiced his defense so as to deprive
him of a fair trial. Walker v. State, 367 Ark. 523, 241 S.W.3d 734 (2006) (per curiam). As to
the prejudice requirement, a petitioner must show that there is a reasonable probability that
the fact-finder’s decision would have been different absent counsel’s errors. Watkins, 2010
Ark. 156, __ S.W.3d __; Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). A
reasonable probability is a probability sufficient to undermine confidence in the outcome of
the trial. Sparkman, 373 Ark. 45, 281 S.W.3d 277.
Appellant raised four grounds for relief in his original Rule 37.1 petition, arguing that
trial counsel was ineffective for failing to investigate the security system or speak to a store
representative concerning the alleged theft at the Wal-Mart where the crime occurred, for
failing to interview or call witnesses whose testimony could have impeached the testimony
of the State’s two witnesses, for failing to obtain and submit a surveillance video from the
aforementioned Wal-Mart, and for failing to challenge the jury-selection process as not
presenting a fair cross-section of the community. All four arguments are unavailing inasmuch
as appellant did not demonstrate the requisite prejudice under Strickland.
Appellant’s first two claims can be summarized as arguing that, had trial counsel
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performed the allegedly omitted actions, the State could not have established that appellant
was guilty of theft, and appellant would therefore also not be guilty of robbery. As was
explained in the opinion on direct appeal, however, this is an incorrect statement of the law
concerning aggravated robbery.
In rejecting appellant’s sufficiency-of-the-evidence
argument, the court of appeals explained that a defendant can be convicted of robbery even
if no property is actually taken because the emphasis is on the express or implied threat of
physical harm to the victim. Carter, 2009 Ark. App. 683, at 1. While there was substantial
evidence that appellant completed a theft, the State was not required to prove the actual
accomplishment of a theft, only the purpose to do so coupled with the threat made to the
victim. Id. at 3. The threat was established by the testimony of the victim, Salli Redding,
who stated that she witnessed appellant place merchandise down his pants while in the store
and that, when she confronted appellant in the parking lot regarding the theft, he pulled a gun
and pointed it at her. Id. at 2–3. Redding’s testimony regarding the presence of a gun was
corroborated by the State’s other witness, Jessica Brewer. Id.
Because the State was not required to prove that the alleged theft had actually been
accomplished, appellant’s arguments that trial counsel was ineffective for failing to investigate
the security system at Wal-Mart, for failing to talk to a Wal-Mart representative regarding the
theft, and for failing to interview other alleged unnamed witnesses regarding the theft cannot
provide a basis for relief. Appellant has failed to establish a reasonable probability that, had
counsel performed those acts, the outcome of appellant’s trial (i.e., his conviction for
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aggravated robbery) would have been different.
Appellant’s third argument was that trial counsel was ineffective for failing to obtain
a surveillance video from Wal-Mart that would have shown appellant in the parking lot and
would have shown that he did not pull a gun. In the order dismissing appellant’s Rule 37.1
petition, the trial court found that part of appellant’s defense strategy was to point to the lack
of any video evidence that he had a firearm. Where a decision by counsel was a matter of
trial tactics or strategy, and that decision is supported by reasonable professional judgment,
then such a decision is not a proper basis for relief under Rule 37.1. Smith v. State, 2010 Ark.
137, __ S.W.3d __ (per curiam); McCraney v. State, 2010 Ark. 96, __ S.W.3d __ (per curiam);
Johnson v. State, 2009 Ark. 460, __ S.W.3d __ (per curiam). There is a strong presumption
that trial counsel’s conduct falls within the wide range of reasonable professional assistance,
and an appellant has the burden of overcoming this presumption by identifying specific acts
or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of
the trial, could not have been the result of reasonable professional judgment. McCraney, 2010
Ark. 96, __ S.W.3d __; Johnson, 2009 Ark. 460, __ S.W.3d __.
Here, appellant does not demonstrate that a decision to rely on the lack of positive
video evidence as part of the defense to the aggravated robbery charge could not have been
the result of reasonable professional judgment on the part of trial counsel. To the extent that
his argument focuses on possible videotape evidence regarding whether he pulled a firearm,
we note that there is an important difference between an absence of proof and actual proof
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of absence.2 Even if it appeared in a surveillance video that appellant did not have a gun, the
testimony of both witnesses was that appellant did in fact display one. Thus, the issue was one
of witness credibility, and it would have been for the jury to resolve the conflict. The trier
of fact is free to believe all or part of any witness’s testimony and may resolve all questions of
conflicting testimony and inconsistent evidence. Rounsaville v. State, 374 Ark. 356, 288
S.W.3d 213 (2008).
Judicial review of counsel’s performance must be highly deferential, and a fair
assessment of counsel’s performance under Strickland requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
conduct, and to evaluate the conduct from counsel’s perspective at the time. Johnson, 2009
Ark. 460, __ S.W.3d __. Therefore, even if we were to assume that the video evidence
appellant refers to actually exists, we cannot say that counsel’s decision not to obtain the tape
and, instead, to rely on the State’s lack of video evidence as part of appellant’s defense could
not have been the result of professional judgment. This is true even if the strategy proved
improvident in the end. See Lee v. State, 2009 Ark. 255, __ S.W.3d __.
Finally, appellant argues that trial counsel was ineffective for failing to challenge the
jury-selection process as not presenting a fair cross-section of the community. A fair-crosssection claim asserts that a distinctive group in the community was systematically excluded
2
To the extent appellant’s argument focuses on possible videotape evidence as it relates to the
theft, he cannot show prejudice for the reasons already discussed.
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from the jury pool. Miller v. State, 2010 Ark. 1, __ S.W.3d __. Appellant argues that the
ratio of African Americans to Caucasians in Garland County, Arkansas, is roughly fifteen
percent, which, according to appellant, means that six of the forty persons in the venire
should have been African American as well. Instead, appellant asserts, the selection process
is “skewed toward Caucasians who live in the Hot Springs Village,” in violation of appellant’s
Sixth Amendment rights. Appellant does not provide any proof that the selection system is
skewed, nor does he further support his argument with citation to relevant case law. The
burden is entirely on the appellant to provide facts that affirmatively support his claims of
prejudice; neither conclusory statements nor allegations without factual substantiation are
sufficient to overcome the presumption, and they cannot form the basis of postconviction
relief. Watkins, 2010 Ark. 156, __ S.W.3d __. We need not consider an argument, even a
constitutional one, when a claimant presents no citation to authority or convincing argument
in its support, and it is not apparent without further research that the argument is well taken.
Id.
Based on all of the foregoing, it is clear to this court that appellant could not prevail
on his appeal. We therefore dismiss the appeal, and appellant’s pending motions are
accordingly moot.
Appeal dismissed; motions moot.
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