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McClanton v. State

Supreme Court of Arkansas

October 23, 2014

RODNEY W. McCLANTON, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

CRITTENDEN COUNTY CIRCUIT COURT, NO. 18CR-05-151. HONORABLE RANDY PHILHOURS, JUDGE.

Rodney W. McClanton, pro se appellant.

No response.

OPINION

Page 517

PRO SE APPELLANT'S MOTIONS FOR APPOINTMENT OF COUNSEL AND FOR EXTENSION OF BRIEF TIME

PER CURIAM

On June 27, 2005, judgment was entered in the Crittenden County Circuit Court reflecting that appellant Rodney W. McClanton had entered a plea of guilty to the sale or delivery of a controlled substance and sentenced as a habitual offender to 120 months' imprisonment in Case No. 18CR-05-151. Imposition of an additional sentence of 180 months' imprisonment was suspended.

On July 11, 2012, the State moved to revoke the suspended sentence, and appellant entered a plea of guilty to having violated the terms of the suspended sentence in Case No. 18CR-05-151. He also entered a plea of guilty to robbery and being a felon in possession of a firearm in a separate case, No. 18CR-12-741. He was sentenced to 360 months' imprisonment as a habitual offender in Case No. 18CR-05-151. In Case No. 18CR-12-741, imposition of a 240-month sentence on each count was suspended.

On March 21, 2014, appellant filed in the trial court in Case No. 18CR-05-151 a pro se petition to correct the sentence imposed in 2012 on revocation of the suspended 2005 sentence. The petition was filed pursuant to Arkansas Code Annotated section 16-90-111 (Supp. 2006). He alleged in the petition that his attorneys only spoke with him briefly before he was rushed into entering the plea in 2012 and that the evidence was not sufficient to sustain the judgment of conviction.

The trial court denied the petition, and appellant lodged an appeal here from the order. Appellant now asks for appointment of counsel to represent him on appeal and an extension of time to file his brief-in-chief. As it is clear from the record that appellant could not prevail on appeal, the appeal is dismissed, and the motions are moot. An appeal from an order that denied a petition for postconviction relief, including an appeal from an order that pertained to a petition under section 16-90-111, will not be permitted to go forward where it is clear that there is no merit to the appeal. Moore v. State, 2014 Ark. 231 (per curiam).

Appellant's claim that he was not properly advised by his attorneys and hurried into pleading guilty was a claim of ineffective assistance of counsel that was cognizable under our postconviction rule, Arkansas Rule of Criminal Procedure 37.1 (2012). A petition that states a claim for postconviction relief cognizable under Rule 37.1 is governed by that rule regardless of the label placed on it by a petitioner. Ussery v. State, 2014 Ark. 186 (per curiam). To the extent that a claim is cognizable under the Rule, section 16-90-111 has been superseded, and any allegation that can be considered under Rule 37.1 is subject to the time limitations contained in the Rule. Id.

Pursuant to Rule 37.2, where an appellant entered a plea of guilty, a petition must be filed within ninety days of the date that the judgment was entered-of-record. Ark. R. Crim. P. 37.2(c)(i) (2012). The time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and, if they are not met, the trial court lacks jurisdiction to grant postconviction relief. Talley v. State, 2012 Ark. 314 (per curiam). The petition in the instant case was not timely filed because appellant filed it more than ninety days after the judgment had been entered of record in 2012; accordingly, the trial court had no jurisdiction to grant the relief sought. When the lower court lacks jurisdiction, the appellate court also lacks jurisdiction. Ussery, 2014 Ark. 186.

Even if considered under the provision in section ...


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