Steven Lamont Marshall v. State of Arkansas

ARKANSAS SUPREME COURT

Nos. CR 05-231 and CR 05-232

NOT DESIGNATED FOR PUBLICATION

STEVEN LAMONT MARSHALL

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered May 19, 2005

PRO SE MOTIONS TO CONSOLIDATE APPEALS, FOR EXTENSION OF TIME TO FILE BRIEF, AND FOR APPOINTMENT OF COUNSEL [CIRCUIT COURT OF PULASKI COUNTY, CR 2001-471 and CR 2001-2065, HON. TIMOTHY FOX, JUDGE]

APPEALS DISMISSED; MOTIONS MOOT

PER CURIAM

On November 15, 2001, judgment was entered reflecting that Steven Lamont Marshall had entered a plea of guilty in case CR 2001-471 to aggravated robbery and misdemeanor theft of property for which an aggregate sentence of 420 months' imprisonment was imposed. Also on November 15, 2001, judgment was entered reflecting that Marshall had entered a plea of guilty in CR 2001-2065 to forgery in the first degree and been sentenced to serve sixty months' imprisonment.

On September 21, 2004, approximately three years after the judgments were entered, Marshall filed in the trial court a joint petition for postconviction relief in the two cases, invokingCriminal Procedure Rule 37.1, Ark. Code Ann. 16-90-111, error coram nobis, and quo warranto.

The trial court dismissed the joint petition in one order, and Marshall has lodged two separate appeals in this court from that order, one in CR 2001-471 and one in CR 2001-2065.

Now before us are appellant's motions to consolidate the appeals, for extension of time to file a brief, and for appointment of counsel. We dismiss the appeal because it is clear that appellant could not prevail on appeal. The motions are moot.

This 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. Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999) (per curiam); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996)(per curiam); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994) (per curiam); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994) (per curiam).

In the petition filed in the trial court, appellant contended that he was not afforded effective assistance of counsel when he entered the guilty pleas in 2001. Claims of ineffective assistance of counsel are cognizable in proceedings under our postconviction rule, Criminal Procedure Rule 37.1. Such claims are not cognizable in a coram nobis or quo warranto proceeding. See McArty v. State, 335 Ark. 445, 983 S.W.2d 418 (1998) (per curiam). Allegations of ineffective assistance of counsel must be raised in a petition under the rule filed in the trial court within ninety days of the date of entry of judgment if the conviction was obtained on a plea of guilty. Ark. R. Cr. P. 37.2 (1995); see Reed v. State, supra (holding that Ark. R. Cr. P. 37 superseded the time limits imposed in Ark. Code Ann. § 16-90-111 for correction or reduction of a sentence). The time limits set out in Rule 37.2 are jurisdictional in nature, and the circuit court may not grant relief on a untimely petition for postconviction relief. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989) (per curiam). Appellant did not file his petition under the rule within the time period allowed, and thus the court did not err when it dismissed the joint petition filed in 2004.

Appeals dismissed; motions moot.

Imber, J., not participating.