Gerald Pate v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

June 24, 2004

GERALD PATE

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-451

APPEAL FROM THE CIRCUIT COURT OF FAULKNER COUNTY, CR 97-811, HONORABLE CHARLES EDWARD CLAWSON, JR., JUDGE

AFFIRMED

                                                                                                                 Per Curiam

In 2000, appellant entered a conditional plea of nolo contendere to the offenses of attempted manufacture of a controlled substance, possession of a controlled substance, possession of drug paraphernalia, and possession of firearms by certain persons. He was sentenced to ten years' imprisonment. The Court of Appeals then affirmed the denial of appellant's motion to suppress pursuant to Ark. R. Cr. P. 24.3. Pate v. State, CACR 00-735 (Ark. Ct. App. May 23, 2001). Thereafter, appellant sought postconviction relief pursuant to Ark. R. Cr. P. 37. The circuit court held a hearing and denied relief. Appellant contends that the circuit court erred in doing so, and erred in denying his request for the appointment of counsel for purposes of the Rule 37 hearing and this appeal. We disagree and affirm.

Appellant raised several claims of ineffective assistance of counsel relating to his motion to suppress and suppression hearing, and a claim that his attorney was ineffective in failing to obtain a ruling on a motion to dismiss on speedy trial grounds prior to his entering a conditional plea. Appellant has failed, however, to meet his burden of producing a record that demonstrates error. See e.g., Miles v. State, 350 Ark. 243, 250, 85 S.W.3d 907, 912 (2002). We cannot reach the merits of appellant's claims because he has failed to include in his brief an abstract of the material portions of his direct appeal record, including his suppression hearing, as required by Ark. Sup. Ct. R. 4-2(a)(5) (2003). Without an abstract of the relevant proceedings, we cannot address appellant's claims according to the "cause and prejudice" test in Strickland v. Washington, 466 U.S. 668 (1984). See Hubbard v. State, 334 Ark. 321, 324, 973 S.W.2d 804, 805 (1998). Although our rules provide a fifteen day opportunity for an appellant to cure any deficiencies in his brief, such efforts here would be futile because it is clear that appellant could not prevail on appeal. See Ark. Sup. Ct. R. 4-2(b)(3) (2003); Booth v. State, 353 Ark. 119, 120, 110 S.W.3d 759, 760 (2003)(noting that court has consistently held that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail).

In reviewing the denial of relief under Rule 37, this court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). When a petitioner asserts that counsel was ineffective, the petitioner is responsible for providing factual support for the allegation. Nelson v. State, 344 Ark. 407, 413, 39 S.W.3d 791, 795 (2001). Allegations without substantiation are insufficient to overcome the presumption. Id. The purpose of Rule 37 is not to debate the possible effect of counsel's conduct but to provide a remedy when a petitioner has suffered actual prejudice. Id.

Appellant cannot prevail on appeal on his allegations of ineffective assistance of counsel at the suppression hearing because he failed to produce factual support for his Rule 37 petition. Although appellant filed a lengthy Rule 37 petition listing twenty-two witnesses and identifying specific evidence he alleges his attorney should have presented at the suppression hearing, he did not attach any evidence to his Rule 37 petition. At his Rule 37 hearing, he failed to present any witness but himself. He did not present his trial attorney or any of the twenty-two witnesses he claims his attorney should have interviewed or presented at the suppression hearing. Indeed, appellant did not introduce any evidence at his Rule 37 hearing. Instead, he stood on his petition. Appellant thus failed to demonstrate that his attorney did not conduct an adequate investigation or provide reasonable professional assistance in relation to the suppression hearing.

Appellant also failed to produce any record in relation to his claim that counsel was ineffective in failing to obtain a ruling on a motion to dismiss on speedy-trial grounds. We may, however, go to the record to affirm, e.g. Ferguson v. State, 343 Ark. 159, 171, 33 S.W.3d 115, 123 (2000), and the record lodged in appellant's direct appeal is a public record which need not be incorporated into the record on the second appeal which stems from the same judgment of conviction. Johnson v. State, 332 Ark. 182, 183, 964 S.W.2d 199, 199 (1998). Here, a review of appellant's direct appeal record shows that no speedy-trial violation occurred.

Arkansas Rule of Criminal Procedure 28 (1997) governs speedy-trial determinations. Zangerl v. State, 352 Ark. 278, 282-83, 100 S.W.3d 695, 698 (2003). It requires the State to try a defendant within twelve months, excluding any periods of delay authorized by Ark. R. Crim. P. 28.3. Ark. R. Crim. P. 28.1 (1997). The time for trial begins to run from the date the charge is filed; however, if prior to that time, the defendant has been continuously held in custody, on bail, or lawfully at liberty, the time shall begin to run from the date of arrest. Ark. R. Crim. P. 28.2(a) (1997). Once a defendant demonstrates a prima facie case of a speedy-trial violation, the burden is on the State to show that the delay was the result of the defendant's conduct or was otherwise justified. Zangerl, supra. If a defendant is not brought to trial within the requisite time, the defendant will be discharged, and such discharge is an absolute bar to prosecution of the same offense and any other offense required to be joined with that discharged offense. Ark. R. Crim. P. 30.1 (1997).

Appellant was arrested on November 11, 1997, and he filed his motion to dismiss on speedy-trial grounds on January 14, 2000. Although appellant did not plead guilty until March 9, 2000, with judgment entered on March 21, 2000, we have held that the date the speedy-trial motion is filed by a defendant tolls the running of the time for speedy trial under our rules. Zangerl, 352 Ark. at 287, 100 S.W.3d at 700. Thus, a period of 794 days elapsed between appellant's arrest and the date the motion to dismiss was filed, and the State would have needed to prove that 429 days were excluded under Ark. R. Crim. P. 28.3 to meet its burden.

A review of the direct appeal records reveals a series of continuance orders chargeable to appellant totaling 443 days. The remaining 351 days are within the one-year period the State was required to bring appellant to trial. Therefore, the motion to dismiss on speedy-trial grounds lacked merit. Because counsel cannot be ineffective for failing to obtain a ruling on a motion that had no merit, the denial of relief on appellant's claim that his counsel was ineffective in obtaining a ruling on his speedy-trial motion is affirmed. See Wooten v. State, 351 Ark. 241, 247, 91 S.W.3d 63, 66 (2002).

Finally, the circuit court did not clearly err in denying appellant the appointment of Rule 37 counsel. A circuit court may, at its discretion, appoint counsel to represent a defendant at a postconviction hearing. Ark. R. Crim. P. 37.3 (2003). But, both the United States Supreme Court and this court have held that there is no constitutional right to an attorney in state postconviction proceedings. Hammon v. State, 347 Ark. 267, 274, 65 S.W.3d 853, 857 (2002). We have held that if an appellant makes a substantial showing that he is entitled to relief in a postconviction appeal and that he cannot proceed without counsel, we will appoint counsel. Martin v. State, 340 Ark. 719, 721,

13 S.W.3d 576, 577 (2000). Our above review of appellant's claims shows that he is not entitled to relief, and appellant has not otherwise demonstrated that the circuit court erred in refusing to appoint him Rule 37 counsel. The order of the circuit court denying appellant's petition is affirmed.

Affirmed.