Everett C. Conley v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

NOVEMBER 13, 2003

EVERETT C. CONLEY

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-779

APPEAL FROM THE CIRCUIT COURT OF INDEPENDENCE COUNTY, NO. CR 1999-218-1, HONORABLE JOHN DAN KEMP, JR., JUDGE

AFFIRMED

Per Curiam

Appellant pled guilty to possessing a controlled substance and drug paraphernalia and was sentenced to a total of 180 months' imprisonment and a $2,500 fine. Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37, claiming ineffective assistance of counsel. The trial court denied relief without a hearing. From that order comes this appeal.

For his first point, appellant argues that the trial court erred in denying his claims of ineffective assistance of counsel. Appellant alleges various instances of ineffectiveness; however, the only claim raised in his Rule 37 petition was that counsel was ineffective for failing to file a motion to dismiss on speedy-trial grounds. We will not consider appellant's additional claims as they are raised for the first time on appeal. See Johnson v. State, 321 Ark. 117, 137, 900 S.W.2d 940, 951 (1995).

The Supreme Court enunciated the standard for assessing the effectiveness of counsel in Strickland v. Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant

makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687. Thus, a defendant must first show that counsel's performance "fell below an objective standard of reasonableness," id. at 688, and second, that the errors "actually had an adverse effect on the defense." Id. at 693.

In reviewing a denial of relief under Rule 37, we must indulge in a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, appellant must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id.

Ineffective assistance of counsel cannot be established by a mere showing of error by counsel. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (1997) (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). We must consider the totality of the evidence before the factfinder, and we will not reverse the denial of postconviction relief unless the lower court's findings are clearly against the preponderance of the evidence. Noel, supra.

Pursuant to Arkansas' speedy-trial rule, a defendant must be tried within twelve months of the date of arrest or the filing of the information, whichever comes first. Ark. R. Crim. P. 28.2; see also Jackson v. State, 334 Ark. 406, 409, 976 S.W.2d 370, 371 (1998). The speedy-trial time in the instant case began to run on 11-16-99, the date the information was filed. Appellant's trial was scheduled to begin on 5- 22-01, the day he pled guilty, which was 553 days from the filing of the

information. Upon review of the docket sheet, we find that the defense was granted the following continuances:

2-8-00 to 6-19-00 132 days

6-19-00 to 8-22-00 64 days

8-22-00 to 10-10-00 49 days

10-10-00 to 11-27-00 48 days

11-27-00 to 1-9-01 43 days

1-9-01 to 3-5-01 55 days

3-5-01 to 5-15-01 71 days

Total 462 days

Continuances requested by a defendant or his counsel are excluded from speedy-trial calculation. Ark. R. Crim. P. 28.3(c). Because the time period from 2-8-00 to 5-15-01 is attributable to requests for continuances by the defense, these days are excluded from speedy-trial calculation. The only time periods that apply to speedy trial are from 11-16-99 to 2-8-00 and from 5-15-01 to 5-22-01, for a total of 92 days. This is well within the twelve months required by the Rule.

Although appellant does not dispute that counsel requested these continuances, he does argue that they should not be counted against him because he did not approve of the continuances. As stated, under Rule 28.3(c), a continuance granted at the request of defense counsel is excluded from speedy-trial calculation, and this is true even if the defendant does not approve or is not consulted. See Huddleston v. State, 339 Ark. 266, 270, 5 S.W.3d 46, 49 (1999). Although appellant acknowledges our holding in Huddleston, he asks that it be overruled. We decline to do so, as Huddleston was correctly decided in accordance with the language of Rule 28.3(c) and the principle that clients are bound by the actions of their attorneys. See, e.g., Peterson v. Worthen Bank & Trust Co., 296 Ark. 201, 204-05, 753 S.W.2d 278, 280 (1988).

If counsel had moved for a dismissal, the trial court would have used the above calculations and found that no speedy-trial violation occurred. Because a motion to dismiss would have been denied, appellant has failed to show that he was prejudiced by counsel's performance. Accordingly, we affirm the trial court's denial of relief.

Appellant's second point on appeal is that the trial court erred in denying his request for an evidentiary hearing. Rule 37.3(a) provides that the trial court need not hold a hearing if "the files and records of the case conclusively show that the petitioner is entitled to no relief." See also Carter v. State, 342 Ark. 535, 538, 29 S.W.3d 716, 718 (2000). But in doing so, the trial court "shall make writtenfindings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court's findings." Id. As stated above, the entries in the docket sheet reflect that there was no speedy-trial violation that would support a motion to dismiss. Therefore, appellant's claim of ineffectiveness was properly denied without a hearing.

Affirmed.