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Newton v. State

Supreme Court of Arkansas

December 18, 2014

ARTHUR LEE NEWTON, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

APPEAL FROM THE DREW COUNTY CIRCUIT COURT. NO. 22CR-10-155. HONORABLE SAM POPE, JUDGE.

AFFIRMED.

Arthur Lee Newton, Pro se, appellant.

Dustin McDaniel, Att'y Gen., by: LeaAnn J. Adams, Ass't Att'y Gen., for appellee.

OPINION

PRO SE

Page 126

PER CURIAM

In 2011, appellant Arthur Lee Newton was found guilty by a jury in the Drew County Circuit Court of sexual indecency with a child and sexual assault in the second degree. He was sentenced to an aggregate term of 288 months' imprisonment. The Arkansas Court of Appeals affirmed. Newton v. State, 2012 Ark.App. 91. The mandate issued on February 15, 2012.

On July 9, 2012, appellant filed in the trial court a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). In the petition, appellant alleged that he was entitled to relief because trial counsel was ineffective based on the failure to call a key witness to testify, the victim's statements were coerced, the prosecuting attorney examined the victim at trial with regard to her prior statement, and he was made to sign a " Sex Offender Acknowledgment Form" before he was found guilty of the charged crimes. The trial court dismissed the petition with prejudice based on a finding that it was untimely, and appellant did not appeal the order.

Subsequently, appellant, while incarcerated in a facility in Lee County, filed in the Lee County Circuit Court a second pro se petition for postconviction relief, and the circuit court denied the petition. Appellant lodged an appeal here, and we dismissed the appeal on the ground that it was clear from the record that appellant could not succeed if the appeal were permitted to go forward as the circuit court did not have jurisdiction to consider the petition. Newton v. State, 2013 Ark. 320 (per curiam).

On September 20, 2013, appellant filed in the trial court a third pro se petition for postconviction relief in which he made substantially the same allegations as he raised in his first postconviction petition, namely that he was entitled to relief because counsel was ineffective in failing to call key witnesses to testify, the victim's

Page 127

statement was coerced, the prosecuting attorney engaged in leading questions during his examination of the victim at trial, he was made to sign a " Sex Offender Acknowledgment Form" before the jury found him guilty of the charged offenses, and the jury was made aware that he had signed the acknowledgment form. Appellant also seemed to allege that his first petition was untimely because he had been ill and was in the infirmary. Considering the petition to be an application for relief pursuant to Rule 37.1, the trial court denied and dismissed the petition. In its order, the trial court, recognizing that it had previously found that the first Rule 37.1 petition was untimely, found that appellant could not file a subsequent petition for postconviction relief when a Rule 37.1 petition alleging essentially the same claims had already been denied as being untimely. Appellant lodged an appeal from that order.

On appeal, appellant contends that he is entitled to postconviction relief because his trial attorney failed to call key witnesses to testify and allowed the prosecuting attorney to badger a witness at trial. Appellant also alleges, as he did in his petition, that he failed to timely file his first petition because he had been ill and was in the infirmary. Appellant contends for the first time on appeal that the untimely filing of his first petition should be excused based on ineffective assistance of counsel during " initial-review collateral proceedings" because, after his conviction was affirmed, his attorney told him that he had no other " options" and abandoned him. Because arguments raised for the first time on appeal could not ...


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