Dennis Van Jenkins v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

June 17, 2004

DENNIS VAN JENKINS

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-578

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 2000-243, HONORABLE JOHN LANGSTON, JUDGE

AFFIRMED

                                                                                                               Per Curiam

Appellant was convicted of first-degree felony murder, aggravated robbery, and theft of property. He was sentenced to life imprisonment, thirty years' imprisonment, and ten years' imprisonment, respectively. The trial court ordered that the ten-year and thirty-year sentences were to run concurrently, but consecutively to the life sentence. We affirmed on appeal. Jenkins v. State, 350 Ark. 219, 85 S.W.3d 878 (2002). Appellant filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37, claiming ineffective assistance of counsel. His petition was denied without an evidentiary hearing, and from that order comes this appeal.

Appellant claims that the trial court erred by denying his petition without a hearing and by failing to specify in its order, portions of the record that were relied upon to support its findings. We first note that appellant has failed to include an abstract of those portions of the record relevant to this point; however, we may look to the record to affirm. Robinson v. State, 49 Ark. App. 58, 60, 896 S.W.2d 442, 443 (1995).

Pursuant to Rule 37:

If the petition and files and record of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any part of the files, or records that are relied upon to sustain the court's findings. Ark. R. Crim. P. 37.3(a).

In reliance on this rule, this court has held that a court is not required to conduct an evidentiary hearing if it can conclusively determine from the record that the petitioner's contentions are meritless. Stewart v. State, 295 Ark. 48, 746 S.W.2d 58 (1988); see also Brown v. State, 291 Ark. 143, 722 S.W.2d 845 (1987) (trial court must look at entire record when denying a petition without a hearing).

Rowbottom v. State, 341 Ark. 33, 36, 13 S.W.3d 904, 906 (2000). In this case, the record conclusively shows that appellant's allegations do not warrant relief, and the trial court entered specific written findings to support its denial of appellant's petition.

The first claim raised in the petition was that counsel was ineffective for failing to move to suppress appellant's statement. The trial court ruled that this allegation was without merit, citing a motion to suppress filed by counsel on December 1, 2000 and denied following a hearing held on January 29, 2001. As for appellant's claim that counsel was ineffective for failing to present mitigating factors during the sentencing phase of trial, the trial court held that appellant did not "offer, identify, or in any way state what mitigating factors could have been presented to the jury during the sentencing phase which would likely have changed the sentence recommended by the jury." According to the court, appellant failed to demonstrate prejudice.

Appellant's third claim of ineffectiveness was that counsel failed to advise appellant that certain points were not preserved for appellate review. According to the trial court's order, appellant did not identify any issues that counsel could or should have raised on appeal. The court held that appellant's claim was nothing more than a "bare allegation, with no substantiation in fact, and [was] without merit." Finally, the trial court addressed appellant's claim that his statement to police was coerced and made without his being informed of his Miranda rights. According to the court, this issue was raised at the January 29, 2001 hearing on appellant's motion to suppress, and the court found that appellant's statement was freely and voluntarily made after appellant had properly been advised of his Miranda rights. Because the trial court conclusively determined from the record that appellant's contentions were without merit, see Rowbottom, supra, we cannot say that the court erredin declining to hold an evidentiary hearing.

Appellant's next claim on appeal is that the trial court erred by failing to rule on his motion for appointment of counsel and his motion for a copy of the trial transcript prior to denying his Rule 37 petition. There is no constitutional right to counsel in postconviction proceedings. Fretwell v. State, 290 Ark. 221, 222, 718 S.W.2d 109, 110 (1986). The right to counsel ends after the direct appeal of the original criminal trial is completed. Id. Accordingly, we find no merit to this claim. As for appellant's claim that the trial court failed to act on his motion for a copy of the trial transcript, the motion is not file marked and will not be considered. Accordingly, we affirm the trial court's denial of relief.

Affirmed.