Fred Michael Lamere v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MAY 29, 2003

FRED MICHAEL LAMERE

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-155

PETITION FOR WRIT OF CERTIORARI AND MOTION TO SUPPLEMENT BRIEF; MOTION TO HOLD SUBMISSION OF BRIEFS IN ABEYANCE

APPEAL FROM THE CIRCUIT COURT OF SALINE COUNTY, NO. CR 97-305-2, HONORABLE GARY M. ARNOLD, JUDGE

AFFIRMED; PETITION FOR WRIT OF CERTIORARI AND MOTION TO SUPPLEMENT BRIEF DENIED; MOTION TO HOLD SUBMISSION OF BRIEFS IN ABEYANCE MOOT

Appellant pleaded guilty to manufacturing a controlled substance and was sentenced to 300 months' imprisonment.1 He was found guilty by a jury of an additional three felony offenses: possession of drug paraphernalia, maintaining a drug premises, and possession of a drug precursor. He was sentenced to an aggregate term of 120 months' imprisonment to be served consecutively to the 300-month sentence. The Arkansas Court of Appeals affirmed the judgments entered in the jury trial. See Lamere v. State, CA CR 99-291 (Ark. App. Dec. 8, 1999). Appellant subsequently filed a timely petition for postconviction relief pursuant to Ark. R. Crim. 37, which was denied. From that order comes this appeal. In addition, appellant has filed the following: (1) petition for writ ofcertiorari to complete the record and motion to file a supplemental brief and (2) motion to hold

submission of briefs in abeyance until matters of the record are settled. We will rule on these motions before addressing appellant's Rule 37 claims.

In the time period leading up to the pending motions, appellant also filed a motion in the trial court to supplement the record on appeal, claiming that because a Rule 37 hearing was not held, "pertinent parts" of the trial record were required to produce a sufficient record. He went on to list several documents which he believed should have been included and asked that the circuit clerk be ordered to supplement the record accordingly. Appellant claims that the trial court failed to act on this motion.

Appellant then filed here a petition for writ of certiorari to complete the record and asked this court to compel the circuit clerk to provide appellant with a complete record of the trial. We treated the petition as a request to supplement the record in his appeal of the order denying postconviction relief with the transcript of his trial. We ruled that he be afforded access to the trial transcript to prepare his brief and held that insofar as he was seeking to consolidate the record in his Rule 37 appeal with the trial record lodged on direct appeal, the motion was moot because the transcript was public record. With respect to appellant's request for access to the trial transcript, we directed our clerk to provide appellant with both a copy of the trial transcript and the postconviction appeal record so that he may prepare his Rule 37 brief.

Appellant also filed, in this court, a motion to modify or correct the record on appeal. Appellant sought to supplement the record with a copy of the circuit court docket sheet. We denied the motion because appellant failed to demonstrate that the docket sheet contained specific information that was pertinent to the issues raised in his appeal.

Before us now is appellant's petition for writ of certiorari and motion to file a supplementalbrief. Appellant is asking this court to issue a writ to complete the record lodged in this court from the Rule 37 proceedings conducted in Saline County, case number CR 97-305-2, and to direct the clerk to provide a record in accordance with the rules of this court. Appellant claims that the clerk's failure to compile a proper record has created unnecessary delay and confusion with this court. Moreover, he claims that the incomplete record of the Rule 37 proceedings coupled with this court's prior decisions denying his requests to supplement the record have violated his rights to due process and equal protection under the law.

Appellant claims that the record should contain a correct copy of the proceedings held below, including any exhibits, judgments, or orders. However, as we have previously ruled, appellant has not demonstrated that the record is deficient. He has made no showing that the issues presented on appeal cannot be decided without a supplemental record. Accordingly, appellant's petition for writ of certiorari is denied. In light of this ruling, appellant's motion to hold submission of briefs in abeyance is moot.

For his Rule 37 appeal, appellant claims that the trial court erred in holding a pretrial hearing in his absence. In its order denying relief, the trial court found that appellant was not present when certain motions were initially addressed but arrived at a later time. According to the order, counsel informed the court that he had discussed the motions with appellant and that appellant had agreed to waive any objections concerning the motions already addressed by the court.

However, in his reply brief, appellant states that he wishes to withdraw this claim. We note that by doing so, appellant waives his right to raise this issue in any future state postconviction proceedings under Rule 37 as the rule allows for only one petition unless the first petition was denied without prejudice. See Ark. R. Crim. P. 37.2(b).

Appellant also argues that the trial court erred when it did not issue a ruling on his petitionfor 640 days after the petition was filed. However, this is not a basis for postconviction relief. Appellant could have raised this issue in a petition for a writ of mandamus to compel the trial court to issue a ruling sooner, but he did not. Cf. Hall v. Simes, 350 Ark. 194, 197, 85 S.W.3d 509, 511 (2002). An appellant is not entitled to reversal of a postconviction order merely because the trial court did not act on the postconviction petition within a certain time frame.

For appellant's second point, he simply repeats his previous claim that he is entitled to relief because he was absent for part of the pretrial hearing. As stated, appellant has chosen to withdraw this claim; therefore, it will not be addressed on the merits.

For his third point, appellant claims that he is entitled to receive 261 days of jail-time credit, rather than the 233 days allowed by the trial court. The trial court found this claim to be conclusory as it consisted of one sentence with no supporting evidence to show that appellant was entitled to more credit than he received. An unsupported, ··²SearchTerm²····²SearchTerm²··conclusory allegation cannot form the basis for relief under Rule 37. Dansby v. State, 350 Ark. 60, 67, 84 S.W.3d 857, 862 (2002). Accordingly, we affirm the ruling below.

For his fourth point, appellant claims that counsel was ineffective for not protecting his right to be present at the pretrial hearing. However, in his reply brief, appellant withdraws this claim. As stated, by withdrawing this claim, appellant waives his right to raise this issue in any future state postconviction proceedings under Rule 37 as the rule allows for only one petition unless the first petition was denied without prejudice. See Ark. R. Crim. P. 37.2(b). Appellant's withdrawal also applies to his claim that counsel was ineffective for not raising on appeal the issue of appellant's absence at the hearing. Accordingly, this issue is also waived and will not be addressed on the merits.

Appellant's fifth point is that counsel was ineffective for failing to move for a dismissal ofthe charges based on a speedy-trial violation and for failing to pursue this issue on direct appeal.

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.

After a review of the trial transcript and docket sheet, the trial court ruled that appellant's right to a speedy trial was not violated. As noted by the court, delays resulting from appellant's conduct will be excluded from speedy-trial calculation. Ferguson v. State, 343 Ark. 159, 167, 33 S.W.3d 115, 120 (2000). Such excludable periods include delays caused by pretrial motions filed by appellant and continuances granted at appellant's request. Id. at 168, 33 S.W.3d at 121. Continuances requested by counsel constitute excludable periods regardless of whether appellant himself agreed to them. Huddleston v. State, 339 Ark. 266, 270, 5 S.W.3d 46, 49 (1999).

The trial court found that no speedy-trial violation occurred because of continuances granted at the request of appellant, counsel, or his co-defendants, and appellant has provided no evidence to the contrary. Moreover, the trial court ruled that counsel was not ineffective as there was no basis upon which to move for a dismissal. As for appellant's claim that counsel should have pursued the issue on direct appeal, the trial court ruled that to do so would have been meritless. We agree thatappellant has not provided any evidence to support his claim that there was a speedy-trial violation. When an appellant claims that counsel should have raised an issue on appeal, he must show that the issue has merit. Nelson v. State, 344 Ark. 407, 415, 39 S.W.3d 791, 797 (2001). Appellant has failed to make such a showing. Therefore, we affirm the trial court's denial of relief.

Appellant's sixth claim is that the trial court erred when it ruled that counsel was not ineffective for failing to argue on direct appeal that appellant's consecutive sentences constituted an illegal sentence. The trial court noted that counsel did request that all sentences run concurrently but that the request was denied. A trial court has discretion on whether to order sentences to run consecutively or concurrently. Pyle v. State, 340 Ark. 53, 61, 8 S.W.3d 491, 496 (2000). In fact, the trial court did order some of appellant's sentences to run concurrently and gave reasons in support of its decision, so appellant was not totally denied the relief he requested. Moreover, the court held that appellant did not demonstrate that he would have prevailed on appeal had counsel raised this issue.

Appellant must show that the issue he claims should have been raised on appeal has merit. See Nelson, supra. The question of sentencing is within the province of the trial court, and appellant has the burden of showing that the trial judge failed to give due consideration to the exercise of his discretion in the matter of the ··²SDU_41²····²SDU_41²··consecutive sentences. See Pyle, supra. Because there was no abuse of discretion, appellant cannot show that he would have prevailed had counsel raised this claim on appeal. Without a showing of prejudice, appellant's claim must fail.

Affirmed; Petition for writ of certiorari and motion to supplement brief denied; Motion to hold briefs in abeyance moot.

Corbin, J., not participating.

1 There appears to be some discrepancy as to whether appellant was found guilty of this offense by a jury or whether he negotiated a plea. However, the judgment of conviction contained in the record for the instant appeal reflects that the conviction was on a plea of guilty.