Michael Jay Venis v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-151

NOT DESIGNATED FOR PUBLICATION

MICHAEL JAY VENIS

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered January 19, 2006

APPEAL FROM THE CIRCUIT COURT OF BENTON COUNTY, CR 2001-401-1, CR 2001-505-1, HON. TOM J. KEITH, JUDGE

REVERSED AND REMANDED

PER CURIAM

In April of 2002, a jury found Michael Jay Venis guilty of manufacturing a controlled substance, methamphetamine, and possession of pseudoephedrine with intent to manufacture methamphetamine, and sentenced him to twenty-five years' imprisonment on the manufacturing charge and six years' imprisonment on the possession charge, to be served consecutively, for a total of thirty-one years' imprisonment in the Arkansas Department of Correction. Prior to sentencing, Venis moved for a new trial based upon ineffective assistance of counsel. Following a hearing, the motion was denied. Venis appealed his sentence and conviction, and the denial of the motion for new trial. The court of appeals affirmed in an unpublished opinion. Venis v. State, CACR 02-920 (Ark. App. January 28, 2004).

Venis then filed a timely pro se petition for postconviction relief under Ark. R. Crim. P. 37.1. Venis subsequently filed a motion to amend the petition with additional grounds for relief. The trial court initially ordered a hearing to be scheduled on two issues and appointed counsel, but later entered an order that vacated the order to schedule the hearing, and denied and dismissed Venis's petition. Venis now brings this appeal of that order.

We first note that the State correctly points out that appellant Venis has failed to abstract the entire trial record. In determining a claim of ineffective assistance of counsel, the totality of the evidence before the factfinder must be considered. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). An appellant must provide an abstract sufficient to conduct a meaningful review. Campbell v. State, 349 Ark. 111, 76 S.W.3d 271 (2002). Were we to reach the merits of appellant's argument as to ineffective assistance of counsel, we would require an abstract of the complete proceedings. Because the trial court incorrectly determined that it was barred from considering all issues we remand for further findings without reaching the merits of those issues, and accordingly, we do not find it necessary to order rebriefing at this time.

This court does 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, 356 Ark. at 64, 146 S.W.3d at 876. 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).

Appellant's sole point on appeal is that the trial court erred in denying the petition without a hearing. The order denying appellant's petition indicated that the trial court found that appellant's claims of ineffective assistance of counsel were raised or could have been raised in appellant's motion for a new trial and could not be raised in a petition under Ark. R. Crim. P. 37.1. But, 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, although 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 raised a number of issues in his petition and motion to amend, and, in his brief, appellant concedes that most of those issues were addressed in either the hearing on the motion for new trial or appellant's direct appeal. Of the two points that remain, appellant asserts reversible error only as to one. Appellant contends the trial court should have held a hearing on his claim that his trial counsel was ineffective for failure to raise the issue of appellant's competence to stand trial and to understand the proceedings and his surroundings.

Arkansas Rule of Criminal Procedure 37.3(a) requires, "If the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court's findings." The trial court has discretion pursuant to Ark. R. Cr. P. 37.3(a) to decide whether the files or records are sufficient to sustain the court's findings without a hearing. Greene, 356 Ark. at 66, 146 S.W.3d at 877. If the trial court fails to make findings as required by Ark. R. Cr. P. 37.3(a), it is reversible error, unless the record before this court conclusively shows that the petition was without merit. Carter v. State, 342 Ark. 535, 538, 29 S.W.3d 716, 718 (2000). Here, the trial court did provide a written order with its findings that the issues had been or should have been addressed by appellant's motion for new trial. However, as the appellant asserts, the issue of appellant's competency was not raised in his motion for new trial, and the trial court did not address further whether or not a hearing was appropriate on that point.

Because the trial court did not reach that issue and provide findings on the point, we cannot determine conclusively whether or not a hearing was required. We do note that a petitioner who asserts his incompetence for the first time in a petition for postconviction relief has the heavy burden of demonstrating with facts that he was not competent at the time of trial. Matthews v. State, 332 Ark. 661, 966 S.W.2d 888 (1998) (per curiam) (citing Henry v. State, 288 Ark. 592, 708 S.W.2d 88 (1986)). We remand for the trial court to consider the issues raised by this single point and determine the appropriate disposition, including whether a hearing would be appropriate. If the trial court does determine upon remand, with benefit of our ruling on this appeal, that no hearing is necessary on this remaining point, then the order must reflect the trial court's findings, and refer to those parts of the record upon which the trial court has based its findings as required by Ark. R. Cr. P. 37.3(a).

Reversed and remanded.