Shirley Matthews v. State of Arkansas

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October 15, 1998

CR 97-267 ___ S.W.2d ___

Appeal & error -- failure to obtain ruling led to procedural bar -- petition for rehearing denied. -- Where the circuit court never ruled upon an issue concerning counsel's failure to object to a statement by the trial judge as he was ruling on an evidentiary objection, a request that the circuit court modify its order to include the omitted issue could not be a request for a rehearing that was prohibited by Ark. R. Crim. P. 37.2(d); appellant's failure to obtain a ruling led to the procedural bar that the supreme court applied in its earlier opinion in the matter; the petition was denied.

Petition for Rehearing; denied.

Jeff Rosenzweig, for appellant.

Winston Bryant, Att'y Gen., by: Gil Dudley, Ass't Att'y Gen., for appellee.

Per Curiam.

In Matthews v. State, 333 Ark. 701, 970 S.W.2d 289 (1998), we affirmed the Circuit Court's denial of Shirley Matthews's petition for postconviction relief. Matthews has filed a petition for rehearing and a motion to file an amended petition. The amended petition appears to be only a refinement of the original. No new allegations of error are raised. As we can see that both the original and amended petitions are within the page limit set forth in Arkansas Supreme Court Rule 2-2, and both have been filed within the time allowed, we grant the motion and now consider the amended petition.

Our decision in Matthews's appeal was based on proceduralgrounds. The first of these grounds was Matthews's failure to abstract the trial fully. The second procedural ground was Matthews's failure to obtain a ruling from the Circuit Court on one of the issues she raised on appeal. In the petition, Matthews argues that our reliance on these procedural grounds constitutes an error of law. We disagree and deny the petition.

In the petition, Matthews argues that the portions of the trial that were not abstracted were unnecessary to the claims she raised on appeal, and therefore, there could be no procedural default on that basis. Matthews also argues that she should not be procedurally barred by the failure to obtain the ruling in Circuit Court. Specifically, Matthews contends that Arkansas Criminal Procedural Rule 37.2(d), which prohibits the filing of a petition for rehearing in the Circuit Court, deprived her of an opportunity to seek to have the omitted issue included in the Circuit Court's order.

In her postconviction appeal, Matthews raised several allegations of ineffective assistance of counsel that centered on an evidentiary objection made by her attorney. The circumstances of the objection are set forth in detail in our opinion. One of Matthews's arguments was that her counsel should have objected to a statement the trial judge made as he was ruling on the objection. According to Matthews, the judge's statement improperly labeled a witness as a co-conspirator. It is with regard to this argument that Matthews alleges our opinion was in error.

As indicated above, Matthews takes issue with our conclusion that she did not adequately abstract her trial. She notes that an abstract of the entire trial was unnecessary to determine if her attorney was ineffective for failing to object to the trial judge's statements. She points out that she "assumed, arguendo" that there was sufficient evidence to prove the witness was a co-conspirator, and that her argument was that the statement, by itself, was prejudicial and constituted structural error. For all of these reasons, she asserts that it was unnecessary to abstract the entire trial for our review.

While we concluded that we could not reach the merits of Matthews's other arguments because of an inadequate abstract, we did not rely on that premise when we concluded that she was also procedurally barred from raising the argument about the judge's remarks. Rather, that issue was procedurally barred because Matthews failed to obtain a ruling in the Circuit Court. Accordingly, we need only to address Matthews's argument that she was precluded from seeking a ruling on the issue by Rule 37.2(d). In our opinion, we relied on Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996), in which we held that the failure to obtain a ruling on an issue when the trial court denies a petition for postconviction relief precludes appellate review. Matthews argues, however, that she should not be procedurally barred on that basis because Arkansas Criminal Procedure Rule 37.2(d), which prohibits the filing of a petition for rehearing in the Circuit Court, precluded her from requesting that the Circuit Court change itsorder to include the omitted issue. We disagree.

Rule 37.2(d) provides:

The decision of the court in any proceeding under this rule shall be final when the judgment is rendered. No petition for rehearing shall be considered.

In McClendon v. State, 293 Ark. 173, 735 S.W.2d 701 (1987), we had the opportunity to apply the rule. In that case, the circuit court concluded that McClendon did not receive effective assistance of counsel because his attorney failed to perfect an appeal from the conviction. Pursuant to this finding, the circuit court ordered a new trial. The State did not appeal that ruling, but did request that the circuit court reconsider its decision to grant McClendon a new trial. The circuit court reconsidered its decision and concluded that a belated appeal, rather than a new trial, was the appropriate remedy. We reversed this ruling because of Rule 37.2(d)'s explicit prohibition against petitions for rehearing.

In McClendon v. State, supra, we applied Rule 37.2(d) because it was clear that pursuant to the request of the State, the circuit court reversed itself. That is, there was a "rehearing" because the court reversed its decision on an issue that it had already considered and ruled upon.

In this case, the Circuit Court never ruled upon the issue concerning the judge's remarks. Thus, a request that the Circuit Court modify its order to include the omitted issue cannot be arequest for a rehearing that is prohibited by Rule 37.2(d). Matthews's failure to obtain a ruling, therefore, leads to the procedural bar that we applied in our opinion.

Petition denied.