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Rowan v. State

Supreme Court of Arkansas

September 4, 2014

KENNETH NEIL ROWAN, PETITIONER
v.
STATE OF ARKANSAS, RESPONDENT

Page 919

PRO SE MOTION FOR BELATED APPEAL OF ORDER. SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT, NO. 66CR-13-359. HONORABLE JAMES O. COX, JUDGE.

Kenneth Rowan, Pro se, petitioner.

No response.

OPINION

Page 920

PER CURIAM

In 2013, petitioner Kenneth Neil Rowan entered a plea of guilty to aggravated robbery in the Sebastian County Circuit

Page 921

Court in case no. 66CR-13-359.[1] A sentence of 276 months' imprisonment was imposed, and imposition of an additional term of 204 months' imprisonment was suspended.

On March 5, 2014, appellant filed in the trial court a timely, verified pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013) in case no. 66CR-13-359. The petition was denied. Petitioner filed a " motion of appeal" in the trial court, but he did not timely file a notice of appeal that complied with Rule 2(a)(4) of the Rules of Appellate Procedure--Criminal (2013). Petitioner now seeks leave to proceed with a belated appeal of the order.

We need not consider the grounds contained in the motion for belated appeal because it is clear from the record that appellant could not prevail if he were permitted to proceed with an appeal. See Pruitt v. State, 2014 Ark. 258 (per curiam). An appeal from an order that denied a petition for postconviction relief will not be permitted to go forward when it is clear from the record that the appellant could not succeed. Caery v. State, 2014 Ark. 247 (per curiam) (citing Williams v. State, 2014 Ark. 70 (per curiam)).

Petitioner alleged in his Rule 37.1 petition that his attorney was ineffective in that counsel's failure to secure the witnesses that petitioner requested left him with no choice but to plead guilty. The witnesses he desired were described only as a psychiatrist, a psychologist, a counselor, a parole officer, and two sheriff's deputies. Petitioner also contended that his psychiatric treatment and mental health were never properly addressed and that he was not afforded a second opinion after he had been found competent at a time when he was taking psychiatric medication.

In an appeal from a trial court's denial of a claim of ineffective assistance of counsel under Rule 37.1, the sole question presented is whether, based on the totality of the evidence, the circuit court clearly erred in holding that counsel's performance was not ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Hickey v. State, 2013 Ark. 237, 428 S.W.3d 446 (per curiam). Under the two-prong Strickland test, a petitioner raising a claim of ineffective assistance of counsel must first show that counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Id. A petitioner making an ineffective-assistance-of-counsel claim must show that counsel's performance fell below an objective standard of reasonableness. Dansby v. State, 347 Ark. 674, 66 S.W.3d 585 (2002). In doing so, the petitioner must overcome a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830. The ...


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