Raye Lynn Harrison v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-64

NOT DESIGNATED FOR PUBLICATION

RAYE LYNN HARRISON

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered February 23, 2006

APPEAL FROM THE CIRCUIT COURT OF CRAWFORD COUNTY, CR 2002-58-B, HON. GARY RAY COTTRELL, JUDGE

REVERSED AND REMANDED

PER CURIAM

A jury found Raye Lynn Harrison guilty of possession of cocaine with intent to deliver. She received a sentence of 480 months' imprisonment. The Arkansas Court of Appeals affirmed. Harrison v. State, CACR 03-111 (Ark. App. March 3, 2004). Subsequently, Harrison timely filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1. After a hearing, the trial court denied the petition, and Harrison has lodged an appeal in this court.

The possession charge stems from an incident in 2002. Harrison and her co-defendant were traveling on Interstate 40 when a state trooper pulled them over. During his search of the vehicle, the trooper recovered six packages containing over ten pounds of cocaine. At trial, the jury, after initially being unable to reach a verdict, found Harrison guilty, but the jury acquitted her co-defendant.

A new attorney represented Harrison on direct appeal. The sole matter for review was whether appellant's Sixth Amendment right of confrontation had been violated due to appellant's being unable to cross-examine the State's chemist at trial. The chemist tested the substance found in Harrison's vehicle and determined the substance to be cocaine. The court of appeals affirmed the conviction, holding that trial counsel received proper notice that the chemist could be a potential witness for the State, thereby triggering a statutory ten-day notice requirement that was not given to the chemist.

Appellant timely filed a verified petition for postconviction relief under Rule 37.1 in which she alleged that her trial attorney provided ineffective assistance of counsel. As a basis for the claim of ineffective assistance of counsel, appellant urged that the trial attorney failed to argue insufficiency of the evidence, failed to sever appellant's trial from her co-defendant's trial, failed to challenge the constitutionality of the search and seizure arising out of the trooper's traffic stop, and failed to give the required ten-day statutory notice in order to secure the chemist's attendance at trial. The petition also claimed that her appellate attorney failed to argue the search-and-seizure issue or raise a sufficiency-of-the-evidence challenge on appeal.

At the hearing on her Rule 37.1 petition, appellant argued that both her trial attorney and her appellate attorney provided ineffective assistance of counsel. Appellant's trial attorney attended the hearing, but did not testify. Her appellate attorney did not attend the hearing.

During the hearing, the trial judge referenced the court of appeals' decision, stating his belief that sufficiency of the evidence had been addressed on appeal, and declined to address that particular allegation with regard to either appellant's trial counsel or appellate counsel. The trial judge also opined that the issue of ineffective assistance of appellant's counsel on appeal was not before the court. At the conclusion of the hearing, the court made a ruling from the bench and denied the petition. On appeal, we look to the order only in deciding if there was reversible error.

Thereafter, the trial court entered an order denying appellant's Rule 37.1 petition on the following grounds:

1. The petitioner, Raye Lynn Harrison, testified at the postconviction hearing. Petitioner never raised any grounds that her trial counsel was ineffective. After being asked by the Judge on several occasions as to any complaints or problems regarding her trial counsel, petitioner stated that she did not have any complaints or problems regarding the ineffectiveness of her trial counsel.

2. The petitioner's only stated complaints were directed toward the attorney that wrote the appeal, and the fact that she was found guilty and the co-defendant was found not guilty.

Wherefore, for the above stated reasons, and based upon the evidence and testimony presented, the Court does hereby deny defendant's Petition for Post Conviction Relief.

On appeal from this order, appellant argues to this court that the trial court's order did not contain findings of fact and conclusions of law as required by Ark. R. Crim. P. 37.3. Additionally, appellant maintains that the trial court failed to consider her claims of ineffective assistance of counsel with regard to her appellate attorney.

The general standard of review for reviewing claims of ineffective assistance of counsel, as set forth in Strickland v. Washington, 466 U.S. 668 (1984), contains two prongs. A defendant must show first that counsel's performance fell below an objective standard of reasonableness. The second prong requires the errors to actually have had an adverse effect on the defense. Strickland, supra.

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 there is 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).

For her first point on appeal, appellant alleges that the trial court's order denying her Rule37.1 petition did not contain findings of fact and conclusions of law as required by Ark. R. Crim. P. 37.3. In pertinent part, Rule 37.3(c) of the Arkansas Rules of Criminal Procedure provides that after a hearing, "[t]he court shall determine the issues and make written findings of fact and conclusions of law with respect thereto." Without exception, we have held that this rule is mandatory and requires written findings. Dulaney v. State, 338 Ark. 548, 999 S.W.2d 181 (1999) (per curiam). If the trial court fails to make the required findings in accordance with the Rule, it is reversible error. Morrison v. State, 288 Ark. 636, 707 S.W.2d 323 (1986). We have also held that the requirement of written findings of fact applies to any issue upon which a Rule 37 hearing is held. See Dulaney, supra (citing Bumgarner v. State, 288 Ark. 315, 705 S.W.2d 10 (1986)).

In the instant matter, in addition to other allegations regarding the ineffectiveness of both her trial counsel and appellate counsel, appellant argued to the trial court that her appellate attorney did not raise a sufficiency-of-the-evidence challenge on appeal. Although the trial court believed the sufficiency matter to have been addressed on appeal, the court of appeals' decision did not consider that claim. Failure to raise a sufficiency of the evidence argument on appeal invites the question of whether that issue was properly preserved at the trial court level so that the matter could be raised on appeal. If trial counsel failed to preserve the matter for appeal, appellate counsel would not be remiss in not raising such a claim on appeal.

Having properly raised ineffective assistance of counsel arguments regarding both attorneys, we look to the trial court's order to determine whether the standards of Strickland have been applied to appellant's claims. Taylor v. State, 340 Ark. 308, 9 S.W.3d 515 (2000) (per curiam). Here, the trial court's order did not make written findings of fact and conclusions of law as required by Ark. R. Crim. P. 37.3. Further, the court's order is conclusory in nature with regard to appellant's claim that her trial counsel and appellate counsel provided her ineffective assistance. For these reasons, the circuit court's order is clearly erroneous.

If, however, the record before this court conclusively shows that the petition is without merit, we will affirm despite the circuit court's failure to make written findings. Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999). In the instant matter, we are unable to affirm regardless of the absence of these findings. The record before us does not conclusively show that the petition is without merit. Specifically, as a threshold matter, the trial court must address whether trial counsel failed to argue and preserve the issue of sufficiency of the evidence, and, if so, if the failure constituted ineffective assistance of counsel. The court must also decide if trial counsel's failure to seek a severance of appellant's trial from her co-defendant amounted to ineffective assistance of counsel, and whether trial counsel's failure to pursue and argue a pretrial motion challenging the search of appellant's vehicle amounted to ineffective assistance of counsel.1 The effectiveness of assistance rendered by appellant's counsel on appeal will depend on the trial court's findings with regard to appellant's trial counsel; that is, appellate counsel can only be found ineffective if counsel failed to raise a meritorious issue that was preserved for appeal. See Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988) (per curiam).

In Dulaney, supra, we noted that without sufficient written findings by the circuit court on the points raised in the appellant's petition for postconviction relief, this court is "unable to effectively review the evidence and the court's reasoning to determine if the court's conclusions were clearly against the preponderance of the evidence." 338 Ark. at 549, 999 S.W.2d at 181. Thus, we must remand the case in accordance with Rule 37.3 for fact-finding on the claim of ineffective assistance of counsel raised in appellant's Rule 37.1 petition.

For her second point of appeal, appellant alleges that the trial court failed to consider her claims of ineffective assistance of counsel with regard to her appellate attorney. Because we are reversing the trial court on the first point of appeal which overlaps this point, it is not necessary for us to address appellant's second point of appeal.

Reversed and remanded.

1 The trial record contains a motion to suppress evidence but does not contain a hearing on the motion or an order disposing of it.