Tommy Wayne Jones v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-35

NOT DESIGNATED FOR PUBLICATION

TOMMY WAYNE JONES

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered December 15, 2005

APPEAL FROM THE CIRCUIT COURT OF FRANKLIN COUNTY, CR 1996-10, HON. JOHN S. PATTERSON, JUDGE

AFFIRMED

PER CURIAM

Tommy Wayne Jones brings this appeal from the denial of postconviction relief pursuant to his pro se petition under Ark. R. Crim. P. 37.1. In 1999, Jones was found guilty by a jury of rape. The court of appeals reversed the judgment and remanded for a new trial. Jones v. State, 73 Ark. App. 432, 44 S.W.3d 765 (2001) ("Jones I"). In 2002, Jones entered a plea of guilty to the charge of rape, and was sentenced by a jury to 480 months' imprisonment in the Arkansas Department of Correction. After retaining new counsel, Jones filed a motion for new trial alleging that his plea was involuntary and his trial counsel ineffective. The motion was denied and this court affirmed. Jones v. State, 355 Ark. 316, 136 S.W.3d 774 (2003) ("Jones II"). Jones then filed his petition for relief pursuant to Ark. R. Crim. P. 37.1, which was denied without a hearing.

Appellant Jones indicates that his sole point on appeal is that the trial court erred in denying relief and not finding ineffective assistance of counsel. In his argument, however, he raises six points: (1) the trial court erred in failing to find counsel ineffective for failing to call certainwitnesses; (2) the trial court erred in failing to find a conflict of interest; (3) the trial court erred in failing to find trial counsel ineffective for failure to move for a change of venue; (4) the trial court erred in providing commitment papers to the Arkansas Department of Correction that listed another person's name; (5) the trial court erred in allowing the jury to consider a charge other than the one with which he was charged; (6) the trial court erred in not allowing appellant to amend his petition to include a claim that he was not allowed to be present when substantial steps were taken in his case, that he was not present during certain hearings by the Department of Human Services regarding custody of his children. Appellant's arguments mirror those presented in his petition and his motion for leave to amend, which was also denied by the trial court.

The order denying postconviction relief found that appellant's first three arguments had been addressed in the proceedings for the motion for new trial. The trial court found that the judgment and commitment order and the jury verdict contained no error, and dismissed appellant's fourth claim. On appellant's fifth point, the trial court found appellant had not stated a claim of ineffective assistance of counsel, and further pointed to appellant's allegation in his petition that the jury convicted him, when, in fact, appellant pleaded to the court. The order denied appellant's motion to amend on the basis that the claim of a violation of due process in a Department of Human Services hearing was unrelated to his petition.

Appellant's first argument is that trial counsel was ineffective for failing to call certain witnesses, and more specifically appellant names one doctor who appellant alleges requested additional mental evaluation for appellant, and more generally contends his mental status and competency were at issue. While appellant couches the argument somewhat differently, it is in substance the same argument set out in his motion for new trial, that trial counsel was ineffective forfailing to investigate and present an argument for mental defect. While claims not raised in a motion for new trial are proper in a proceeding pursuant to a petition under Ark. R. Crim. P. 37.1, ineffective assistance claims raised in a motion for new trial are settled and may not be raised again in a petition under Ark. R. Crim. P. 37.1. See Huddleston v. State, 347 Ark. 226, 61 S.W.3d 163 (2001). Appellant's claim was not properly raised in his petition.

Appellant's second argument as presented in his petition, that trial counsel was ineffective because of a conflict arising out of an alleged representation of appellant's children as guardian ad litem, is identical to his claim in his motion for new trial. That issue was addressed in our previous decision in Jones II, and is now law of the case. The law-of-the-case doctrine dictates that a decision made in a prior appeal may not be revisited in a subsequent appeal. Green v. State, 343 Ark. 244, 33 S.W.3d 485 (2000). A decision in a prior case becomes law of the case, even if wrongly decided, and matters decided in the first appeal are considered concluded. Id. at 250, 33 S.W.3d at 489.

Appellant's third argument, concerning a motion for change of venue, was also raised in his motion for new trial. While the argument was waived because appellant did not obtain a ruling on it or pursue it on appeal, it was nevertheless, as with his first argument, a claim settled by the proceedings on the motion and not proper for a petition under Ark. R. Crim. P. 37.1.

Appellant's fourth argument is that documents used for his commitment listed an erroneous name. The trial court's order found the claim was not proper for a proceeding under a Rule 37.1 petition, but additionally found that the jury verdict and the judgment and commitment order correctly listed appellant's name. We do not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous or clearly against the preponderance of the evidence. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). A finding is clearly erroneous when, although thereis evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002).

Here, the court was clearly correct in determining that the order and verdict contained no error. Appellant cites no authority for his argument that a mistake in an additional judgment form also entered of record, which was apparently a form used by the local prosecuting attorney, should invalidate his commitment. This court will not consider an argument that presents no citation to authority or convincing argument. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002).

As stated in his petition, appellant's fifth argument challenged his conviction because he alleged that it was based upon statements made during voir dire concerning the victim's limited mental abilities. Appellant alleged that the charge filed against him was not based upon the victim's mental capabilities, and the comment prejudiced the jury in its consideration of the charge. On appeal, appellant attempts to modify that argument to contend that he would not have pleaded guilty to a charge alleging the victim was not mentally competent. In any case, appellant has not pointed out any basis for his contention that his plea was entered as to any other charge than rape, based upon sexual intercourse with a person less than fourteen years old. The statement he alleges prejudiced him occurred after he entered his plea, and followed the determination of guilt.

The trial court found that appellant failed to state a claim of ineffective assistance of counsel on this point, and the State argues on appeal that this is a direct attack on the verdict not cognizable in a Rule 37.1 proceeding. A petitioner may qualify for relief under Ark. R. Crim. P. 37.1, regardless of trial counsel's performance, if he demonstrates error so fundamental as to render the judgment of conviction void and subject to collateral attack. Cothren v. State, 344 Ark. 697, 42 S.W.3d 543(2001). Postconviction proceedings under Ark. R. Crim. P. 37.1 do not permit a petitioner to raise questions that might have been raised at the trial or on the record on direct appeal, unless they are so fundamental as to render the judgment void and open to collateral attack. Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001). A conviction for a crime other than that charged may be fundamental error, but, appellant has not asserted any facts or evidence in support of an allegation that his plea was entered to a different crime than that charged. As the trial court found, the jury was not used for determining guilt. Conclusory statements cannot be the basis of postconviction relief. Jackson v. State, 352 Ark.359, 105 S.W.3d 352 (2003).

Appellant's last argument contends the trial court should have permitted him to amend his petition to allege a violation of due process because he was not present at certain hearings conducted by the Department of Human Services. The State asserts that this argument was raised for the first time on appeal. It is true that in this portion of his brief appellant raises some new allegations concerning trial counsel's conflict of interest. This court has repeatedly stated that we will not address arguments, even constitutional arguments, raised for the first time on appeal. Dowty v. State, ___ Ark. ___, ___ S.W.3d ___ (June 23, 2005). We, therefore, do not address any new argument raised by appellant.

To the extent appellant argues that the trial court should have granted leave to amend his petition, the court clearly acted within its discretion in denying appellant's motion. Rule 37.2(e) of the Arkansas Rules of Criminal Procedure provides that a petition may be amended with leave of the court before the court acts upon the petition. The rule clearly provides that permission to amend is discretionary. The trial court did not abuse that discretion by denying leave to amend, where the petitioner sought to add claims concerning hearings in a separate, civil proceeding. The trial courtwas not obligated to consider any potential violation of due process in a proceeding that was not relevant to, or in the record for, appellant's criminal case. See Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2002). Having found no reversible error, we affirm the denial of postconviction relief.

Affirmed.