Chavis v. State

Michael S. CHAVIS v. STATE of Arkansas

CR 96-768                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 28, 1997


1.   Criminal procedure -- postconviction relief due to ineffective assistance
     of counsel -- when addressed on direct appeal. -- Whereas A.R.Cr.P.
     Rule 37 generally provides the procedure for postconviction
     relief due to ineffective counsel, the supreme court will
     address the issue on direct appeal, provided that it was first
     raised during trial or in a motion for new trial; the court
     will not, however, consider such a claim unless the
     surrounding facts and circumstances were fully developed
     either during the trial or during other hearings conducted by
     the trial court. 

2.   Criminal procedure -- "deemed denied" provision of Ark. R. App. P.--Civ.
     4(c) inapplicable to case -- order reciting trial court's findings
     necessary for review. -- The "deemed denied" provision of Ark. R.
     App. P.--Civ. 4(c) does not apply to appeals from A.R.Cr.P.
     Rule 37 petitions, and, although appellant's appeal was from
     the denial of a posttrial motion for new trial rather than
     from the denial of a Rule 37 petition, the "deemed denied"
     provision of Rule 4(c) was similarly inapplicable to this
     case, where the trial court did not conduct a hearing on
     appellant's motion for new trial, did not make any factual
     findings regarding counsel's ineffectiveness, and did not make
     a ruling on the motion; because the trial court is in the best
     position to evaluate trial counsel's performance and
     competency, an order reciting its findings is necessary to
     enable the appellate court to conduct a meaningful review of
     the claim.  

3.   Criminal procedure -- sufficient order from trial court not presented --
     judgment affirmed. -- Where appellant failed to present a
     sufficient order from the trial court for consideration of his
     allegation of trial counsel's ineffectiveness, the supreme
     court affirmed the trial court's judgment.

4.   Trial -- exclusion of witness -- appellant lacked standing to assert rights
     of victim's mother. -- Appellant lacked standing to assert the
     rights of the victim's mother when he argued that the trial
     court erred in excluding her from the courtroom in violation
     of A.R.E. Rule 616; even if he had standing, he also failed to
     demonstrate how the witness's exclusion from the courtroom
     prejudiced him in any way.


     Appeal from Pulaski Circuit Court, Seventh Division; John B.
Plegge, Judge; affirmed.
     Sanford & Stiritz, by: Jon R. Sanford, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.
     Donald L. Corbin, Justice.
     Appellant Michael S. Chavis appeals the judgment of the
Pulaski County Circuit Court convicting him of rape in violation of
Ark. Code Ann.  5-14-103 (Supp. 1995) and sentencing him to thirty
years' imprisonment in the Arkansas Department of Correction.  Our
jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(1).  Appellant
raises three points for reversal, two of which comprise essentially
the same argument.  We find no error and affirm.
     Appellant was convicted of rape by a jury on January 23, 1996,
and was sentenced to thirty years' imprisonment pursuant to the
judgment and commitment order filed January 25, 1996.  On
February 20, 1996, Appellant's trial counsel filed a notice of
appeal.  Three days later, however, Appellant's newly retained
counsel filed a motion for new trial alleging that Appellant's
trial counsel had been ineffective in his representation of
Appellant, in that, among other allegations not pertinent to this
appeal, trial counsel had failed to move for a mistrial on the
ground that one of the jurors had fallen asleep during trial.  The
trial court never ruled on the motion for new trial, and as such,
the motion was "deemed denied" as of the 30th day after it was
filed pursuant to Ark. R. App. P.--Civ. Rule 4(c), applicable to
criminal appeals through Ark. R. App. P.--Crim. Rule 2(a)(3).  It
is from that deemed denial that Appellant appeals.   
     Appellant now contends that his trial counsel was ineffective
in failing to bring to the trial court's attention, either through
objection or motion for mistrial, that one of the jurors slept
through a portion of the trial.  Additionally, Appellant argues
that he was denied a fair trial as guaranteed by the Arkansas and
United States Constitutions due to that juror's inattentiveness. 
There is no evidence, however, that Appellant ever raised the issue
of his being denied a fair trial separately and apart from his
allegation of trial counsel's ineffectiveness.  Accordingly, we
address the argument as one solely based upon the constitutional
right to the effective assistance of counsel.  
     Whereas A.R.Cr.P. Rule 37 generally provides the procedure for
postconviction relief due to ineffective counsel, we will address
this issue on direct appeal, provided it was first raised during
trial or in a motion for new trial.  Dodson v. State, 326 Ark. 637,
934 S.W.2d 198 (1996).  We will not, however, consider such a claim
unless the surrounding facts and circumstances were fully developed
either during the trial or during other hearings conducted by the
trial court.  Id.        
     Here, the trial court did not conduct a hearing on the motion
for new trial, did not make any factual findings as to counsel's
ineffectiveness, nor did it make a ruling on the motion.  As this
court noted in Dodson, the "deemed denied" provision of Rule 4(c)
does not apply to appeals from Rule 37 petitions.  Although this
appeal is from the denial of a posttrial motion for new trial,
rather than from the denial of a Rule 37 petition, the "deemed
denied" provision of Rule 4(c) is similarly inapplicable to this
case.  Id.  The reasons for the necessity of an actual ruling and
fully developed facts are the same in both instances, as this court
explained in Dodson:
     Such a deemed ruling necessarily precludes any
     consideration by the trial court of the relevant facts
     pertaining to the claim.  As the trial court is in the
     best position to evaluate trial counsel's performance and
     competency, an order reciting its findings is necessary
     to enable us to conduct a meaningful review of the claim. 
     
Id. at 644, 934 S.W.2d  at 202.  
     In the case at hand, Appellant has failed to present us with
a sufficient order from which to consider his allegation of trial
counsel's ineffectiveness.  Thus, based upon our holding in Dodson,
we affirm as to this point. 
     For his final point for reversal, Appellant argues that the
trial court erred in excluding Terri Chavis, mother of the child
victim, from the courtroom in violation of A.R.E. Rule 616.  Rule
616 provides in pertinent part:
     [I]n the event that the victim of a crime is a minor
     child under eighteen (18) years of age, that minor
     victim's parents, guardian, custodian or other person
     with custody of the alleged minor victim shall have the
     right to be present during any hearing, deposition, or
     trial of the offense. 
     We find no merit to this argument due to the fact that
Appellant lacks standing to assert the rights of the victim's
mother, and furthermore, even if he had standing, he has failed to
demonstrate how the witness's exclusion from the courtroom
prejudiced him in any way.  Williams v. State, 320 Ark. 67, 894 S.W.2d 923 (1995).
     Affirmed.