Billy Howard Chatman v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 03-407

NOT DESIGNATED FOR PUBLICATION

BILLY HOWARD CHATMAN

APPELLANT

VS.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered November 11, 2004

APPEAL FROM THE FULTON COUNTY CIRCUIT COURT, CR 97-63-1, HON. JOHN DAN KEMP JR., JUDGE

AFFIRMED

PER CURIAM

A jury convicted appellant of attempted manufacture of a controlled substance and possession of drug paraphernalia. He was sentenced to consecutive terms of thirty and ten years' imprisonment, respectively. The Court of Appeals affirmed on direct appeal. Chatman v. State, CACR 01-1037 (Ark. App. June 19, 2002)(unpublished). Appellant timely filed a petition for postconviction relief pursuant to Ark. R. Cr. P. 37, raising claims of ineffective assistance of counsel. The circuit court denied the petition without first holding a hearing. We affirm.

The standard for assessing the effectiveness of counsel requires showings that counsel's performance "fell below an objective standard of reasonableness," and that counsel's errors "actually had an adverse effect on the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 693 (1984). 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). 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. Nelson v. State, 344 Ark. 407, 413, 39 S.W.3d 791, 795 (2001). Where the trial court concludes, without a hearing, that the petitioner is not entitled to relief, Rule 37.3(a) requires the trial court to make written findings specifying the parts of the record that form the basis of the trial court's decision. E.g., Carter v. State, 342 Ark. 535, 538, 29 S.W.3d 716, 718 (2000). If the trial court fails to make such findings, it is reversible error, unless the record before this court conclusively shows that the petition is without merit. See id.

Appellant contends on appeal that the circuit court erred in denying his claim that his trial counsel, Beverly Claunch, was ineffective in failing to move to dismiss the charges against him on speedy-trial grounds. In denying the claim, the circuit court issued written findings specifying the parts of the record supporting the basis of the decision.

The apposite law governing speedy trials has been often stated by this court. Pursuant to Ark. R. Crim. P. 28.1, the State is required to try a criminal defendant within twelve months, excluding any periods of delay authorized by Ark. R. Crim. P. 28.3. Zangerl v. State, 352 Ark. 278, 282-83, 100 S.W.3d 695, 698 (2003). 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. Id.; see also Ark. R. Crim. P. 28.2(a). 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, Ark. R. Crim. P. 30.1 provides 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. Id.

In his petition, appellant alleged that 1,237 days elapsed between his arrest and the start of his trial. Appellant identified five separate periods of time totaling 486 days as being not excludable under the speedy-trial rules. Thus, according to appellant's argument, the State exceeded the twelve-month time period in which to bring him to trial by 134 days. The State agreed with appellant that time periods totaling 302 days could not be excluded. The State, however, disputed two periods of time totaling 184 days. In denying relief, the circuit court concluded that the State had met its burden under Rule 28.3 to show that the delays were the result of appellant's conduct or were otherwise justified. The circuit court found that trial docket entries and a written order showed that both time periods were excludable due to granted continuance motions made by appellant or his counsel. We affirm the circuit court's order denying relief.

Rule 28.3 requires that any excluded periods of time be set forth in a written order or docket entry. The period of delay resulting from a continuance granted at the request of a defendant or counsel constitutes an excludable period. Ark. R. Crim. P. 28.3(c). Such periods of delay "shall be from the date the continuance is granted until such subsequent date contained in the order or docket entry granting the continuance." Id.

The first time period in question was from April 26, 1999, to June 2, 1999. Appellant makes no argument that the circuit court erred in ruling this time period excludable under Rule 28.3. He concedes that the sum of the additional days comprising this time period and the 302 days that were not disputed below would not exceed the twelve-month time period in which the state had to bring him to trial. Appellant contends, however, that the circuit court erred in ruling the second time period, March 17, 2000, to August 15, 2000, as excludable under Rule 28.3. While the parties state that this time period covered 148 days, our calculation reveals that it ranges 151 days. In any event, the additional days do not impact our review.

As to the second time period, appellant's trial docket contains the following critical entries. On February 22, 2000, trial was continued upon appellant's motion until April 25, 2000. On March 17, 2000, appellant's counsel, Ms. Claunch, moved to withdraw from representation. On April 25th, appellant appeared in court with Ms. Claunch, and she was allowed to withdraw. A pre-trial hearing was set for May 1, 2000, and appellant was ordered to appear at that time with an attorney. On May 1st, appellant appeared and trial was continued until October 3, 2000, upon his motion. Further, the trial court ordered appellant to appear on June 28, 2000, with an attorney. On that date, the defendant appeared and pre-trial was reset for August 15, 2000, but the docket does not reflect whether appellant appeared with any counsel. On August 15th, appellant was found indigent and the court reappointed Ms. Claunch to represent appellant.

Appellant argues that the second time period should not be excluded because he was without an attorney during the period. He asserts that Ms. Claunch asked to be relieved because appellant's income from the previous year made him ineligible for public defender representation. He also states that at the May 1, 2000, appearance, he was given the choice of requesting a continuance or going to trial the next day without an attorney. The record before us, however, does not show why Ms. Claunch moved to withdraw. The circuit court's order denying relief fails to specify the basis of the motion, and the only portions of the record that pertains to the motion are the docket entries, all of which are silent on the matter. Appellant has not abstracted any pre-trial hearings from the second time period or included in his addendum any pleadings from the record of his direct appeal which provide any relevant information. It is appellant's burden to produce a record that demonstrates error. E.g., Miles v. State, 350 Ark. 243, 250, 85 S.W.3d 907, 912 (2002).

Rule 28.3(h) provides that periods of delay for good cause are excluded in computing the time for a defendant's speedy trial. This court has held that when a delay results from the need for the appointment of new counsel, such appointment is excludable for good cause. Blackwell v. State, 338 Ark. 671, 674, 1 S.W.3d 399, 400-01 (1999). We also have held that continuances granted at a defendant's attorney's request are excludable from the speedy-trial time, even if the defendant does not approve or is not consulted. Huddleston v. State, 339 Ark. 266, 270, 5 S.W.3d 46, 49 (1999)(citing Matthews v. State, 268 Ark. 484, 490, 598 S.W.2d 58, 61-62 (1980)). Here, the trial court allowed appellant's counsel to withdraw from representation, and appellant has failed to produce a record demonstrating that the period of delay was not excludable for good cause.

The cases cited by appellant, based upon the record before us, fail to support his argument. The period of delay in Norton v. State, 273 Ark. 289, 618 S.W.2d 164 (1981), overruled on other grounds, Richards v. State, 338 Ark. 801, 2 S.W.3d 766 (1999), was not the defendant's fault, but rather attributable to the trial court's delay in appointing a replacement prosecutor following the recusal of the initial attorney for the state. The case of Archer v. State, 271 Ark. 365, 609 S.W.2d 91 (1980), involved court appointed counsel twice moving to be relieved due to a conflict of interest without asking for a continuance. The opinion is silent on whether counsel was allowed to withdraw, but this court strictly construed Rule 28.3 to hold that the motions to be relieved failed to constitute requests for continuances within the meaning of the rule. Id. at 368, 609 S.W.2d at 93. The period of delay in Glover v. State, 307 Ark. 1, 817 S.W.2d 409 (1991), was due to the trial court's failure to give notice that court appointed counsel had been allowed to withdraw based upon a conflict of interest and failure to appoint substituted counsel for two months.

In contrast, the length of delay over the second time period appears, in part, to be due to appellant's failure to appear at his pre-trial hearing with a new attorney. The docket shows that when the trial court allowed Ms. Claunch to withdraw on April 25, 2000, appellant was ordered to appear at the May 1, 2000, pre-trial hearing with an attorney. The docket entry for May 1st shows that appellant appeared, but that the court reset the pre-trial hearing for June 28th and again ordered appellant to appear with an attorney at that time. Appellant appeared on June 28th, and the hearing was reset for August 15, 2000, the day which Ms. Claunch was reappointed to represent appellant. Based upon these docket entries alone, appellant's failure to appear with new counsel contributed to the delay from March 17, 2000, to August 15, 2000. This court has held that when the defendant is scheduled for trial within the time for speedy trial, and the trial is postponed because of the defendant, that is "good cause" to exclude the time attributable to the delay. Gamble v. State, 350 Ark. 168, 171, 85 S.W.3d 520, 522-23 (2002).

Accordingly, for the reasons stated above, any motion made at the start of trial by appellant's counsel to dismiss the charges against appellant on speedy-trial grounds would have been without merit. Because counsel cannot be ineffective for failing to obtain a ruling on a motion that had no merit, the circuit court's denial of appellant's petition is affirmed. See Wooten v. State, 351 Ark. 241, 247, 91 S.W.3d 63, 66 (2002).

Affirmed.