Bryant v. State

Dale BRYANT v. STATE of Arkansas

CR 95-741                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 16, 1996


1.   Appeal & error -- A.R.Cr.P. Rule 37 -- only two claims
     cognizable in Rule 37 proceedings. --  When a defendant pleads
     guilty, the only claims cognizable in A.R.Cr.P. Rule 37
     proceedings are those that allege that the plea was not made
     voluntarily and intelligently or was entered without effective
     assistance of counsel.

2.   Appeal & error -- A.R.Cr.P. Rule 37 -- conclusory allegations
     unsupported by facts do not provide basis for hearing or
     postconviction relief. -- Conclusory allegations totally
     unsupported by facts do not provide a basis for a hearing or
     for postconviction relief.

3.   Appeal & error -- A.R.Cr.P. Rule 37 -- allegations in twenty-
     three page document not considered. -- Where, sixteen months
     after he filed his Rule 37 petition, appellant filed a twenty-
     three page document entitled "Rule 37--WRITTEN ARGUMENT," the
     supreme court held that the trial judge was correct in
     refusing to consider it; A.R.Cr.P. Rule 37.1 (e) provides that
     a petition shall not exceed ten pages in length; Rule 37.2(b)
     provides that all grounds for relief must be raised in the
     original petition, and Rule 37.2(e) provides that in order to
     amend his petition, a petitioner must ask leave of the court; 
     In filing the twenty-three page document, the appellant did
     not ask the court's permission either to file an overlength
     document or to amend his original petition with the latter
     document; therefore, the allegations in the latter document
     were not considered.

4.   Appeal & error -- A.R.Cr.P. Rule 37 -- judge who presided over
     defendant's trial can also preside over defendant's
     postconviction proceeding. -- The judge who presides over a
     defendant's trial can also preside over that defendant's
     postconviction proceeding; moreover, recusal is not required
     when some of the judge's rulings are  considered in the Rule
     37 proceedings. 

5.   Judges -- disqualification discretionary -- no abuse of
     discretion in decision not to recuse. -- A circuit judge's
     decision not to recuse from a case is a discretionary one and
     will not be reversed on appeal absent an abuse of that
     discretion; where comments by the trial judge that appellant
     claimed indicated prejudice against him were made when the
     circuit court ruled on the appellant's motion some sixteen
     months after it was filed, the supreme court held that it
     would consider only the facts set forth in the motion that the
     trial court ruled on and found that there was no abuse of
     discretion in the trial court's decision not to recuse.


     Appeal from Boone Circuit Court; Robert McCorkindale, Judge;
affirmed.
     John Putman, for appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.

     Per Curiam.January 16, 1996







DALE BRYANT
     Appellant


v.


STATE OF ARKANSAS
     Appellee




CR 95-741


APPEAL FROM THE CIRCUIT COURT
OF BOONE COUNTY, (NO. CR 92-
35), HONORABLE ROBERT
MCCORKINDALE, JUDGE



AFFIRMED





                           Per Curiam.


     
      The appellant, Dale Bryant, pleaded guilty to capital murder
on 
August 18, 1992. His plea was conditional on his right to appeal an
adverse ruling by the trial court on a motion to suppress his
inculpatory statements.  The appellant was sentenced to life
without parole.  On September 13, 1993, the Arkansas Supreme Court
affirmed the trial court's denial of the suppression motion. 
Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993).  On November
18, 1993, the appellant filed a petition for postconviction relief
pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. On
the same date, the appellant also filed a motion for the trial
judge to recuse himself from the appellant's case.  The petition
and motion were denied without a hearing, and the appellant brings
this appeal.
     The appellant argues that the trial court erred in not holding
an evidentiary hearing on the appellant's Rule 37 petition. The
judge held that the petition did not state grounds sufficient to
grant relief. In the petition the appellant claimed that his
sentence should be vacated and asked that he be allowed to withdraw
his guilty plea for several reasons.  He stated that his
constitutional right to be present at all critical stages of the
proceedings was violated when he was not present at a hearing on
the state's motion to have the appellant submit to blood and hair
samples.  He also claimed that the trial judge violated his rights
and "committed a grave malfeasance" by stating that the appellant
was represented by counsel at the hearing.  Neither of these claims
is cognizable in Rule 37 proceedings. When a defendant pleads
guilty, the only claims cognizable in Rule 37 proceedings are those
which allege that the plea was not made voluntarily and
intelligently or was entered without effective assistance of
counsel.  See Branham v. State, 292 Ark 355, 730 S.W.2d 226 (1987).
      The appellant next claimed in his petition that his guilty
plea was the result of "reprehensible methods of persuasion to gain
the plea" by his appointed counsel and that, but for counsel's
persuasion tactics and unprofessional errors, the results of the
proceeding would have been different.  These are conclusory
allegations totally unsupported by facts; therefore, the
allegations do not provide a basis for a hearing or postconviction
relief.  
     Sixteen months after the appellant filed his Rule 37 petition,
he filed a twenty-three page document entitled "Rule 37--WRITTEN
ARGUMENT."  None of the claims in that document were considered by
the trial judge, nor should they have been.  Arkansas Rule of
Criminal Procedure Rule 37.1 (e) provides that a petition shall not
exceed ten pages in length.  Rule 37.2(b) provides that all grounds
for relief must be raised in the original petition and section (e)
of the same rule provides that in order to amend his petition a
petitioner must ask leave of the court.  In filing the twenty-three
page document, the appellant did not ask the court's permission to
either file an overlength document or amend his original petition
with the latter document.  Therefore, the allegations in the latter
document will not be considered.
     The appellant claims that the trial court erred in refusing to 
recuse from the appellant's case. In the appellant's motion he
stated that the trial judge should be disqualified because the
appellant had filed a complaint against the judge with the Arkansas
Judicial Discipline Committee.  The appellant further stated that
the committee only ruled on part of the complaint because of lack
of jurisdiction and the appellant was seeking a ruling on the
remainder of the complaint.  The appellant also claimed that the
judge should be disqualified because the judge's actions in the
pretrial proceedings form the basis of some of his Rule 37
allegations.
     In his brief on appeal, the appellant argues that the trial
judge should have disqualified himself from the Rule 37 proceeding
because he was going to have to rule on the propriety of his own
actions.  This court has held that the judge who presides over a
defendant's trial can also preside over that defendant's
postconviction proceeding. Travis v. State, 283 Ark. 478, 678 S.W.2d 341 (1984).  Moreover, recusal is not required when some of
the judge's rulings are  considered in the Rule 37 proceedings. 
See Meyers v. State, 252 Ark. 367, 479 S.W.2d 238(1972); Holloway
v. State, 293 Ark. 438, 738 S.W.2d 796 (1987).
     The appellant also claims that the trial court's order
dismissing the Rule 37 petition indicated that the trial court was
prejudiced against the appellant.  The order stated in part:


     It's the Court's impression that [the appellant] considers
     himself far more clever and intelligent than either of his 
     lawyers or the trial judge.  His filing of a Rule 37 peti-
     tion was recognized by all concerned to be a given.  This
     case was processed recognizing that regardless of circum-
     stances of his being convicted that [the appellant] would   
     claim that he was entitled to postconviction relief and
     would complain about the quality of legal representation.


The appellant argues that the judge's comments reflect a
preconceived notion that any allegations made by the appellant in
a Rule 37 petition would be false. 
     A circuit judge's decision not to recuse from a case is a
discretionary one and will not be reversed on appeal absent an
abuse of that discretion. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993).  The trial judge's comments were made when he
ruled on the appellant's motion some sixteen months after it was 
filed, but the appellant wants this court to consider those
comments as a reason to hold that the trial judge was wrong in
refusing to disqualify himself.  This court will consider only the
facts set forth in the motion that the trial court ruled on; we
find that there was no abuse of discretion in the trial court's
decision not to recuse.
     Affirmed.