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APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT. NO. CR-2007-54. HONORABLE DAVID G. HENRY, JUDGE.
Ronald L. Davis, Jr. Law Firm, PLLC, by: Ronald L. Davis, Jr., for appellant.
Dustin McDaniel, Att'y Gen., by: Lauren Elizabeth Heil, Ass't Att'y Gen., for appellee.
KAREN R. BAKER, Associate Justice.
This case involves an appeal from a denied petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1. Appeals from denied Rule 37 petitions are assigned to this court by the text of the Rule itself. See Ark. R. Crim. P. 37.3(b) (" If a petition on which the petitioner was represented by counsel is denied, counsel shall continue to represent the petitioner for an appeal to the Supreme Court, unless relieved as counsel by the circuit court or the Supreme Court." ). For reversal, appellant Roy Smith contends that the circuit court erred in finding that his trial counsel was not ineffective for (1) refusing to strike a juror after being told that the juror was an acquaintance of Smith's sister and did not like Smith; (2) failing to properly move for a continuance because of an absent witness; and (3) failing to object to the legality of the search of Smith's home despite being advised that the officers executing the search did not knock and announce prior to entering and executed the search prior to 6:00 a.m. We find no error and affirm.
An Arkansas County Circuit Court jury found Smith guilty of possession of cocaine with intent to deliver, possession of marijuana with intent to deliver, and unauthorized use of property to facilitate a crime. An order reflecting those verdicts was entered on June 17, 2009. On that same date, the jury recommended sentences of eighty years imprisonment for the possession-of-cocaine charge, thirty years' imprisonment and a $10,000 fine for the possession-of-marijuana charge, and forty years' imprisonment and a $15,000 fine for the unauthorized-use-of-property charge. The circuit court ordered that the jury sentences run consecutively, followed by an additional ten years' imprisonment pursuant to Arkansas Code Annotated section 5-64-411, resulting in a total sentence of 160 years' imprisonment and a $25,000 fine. The circuit court took into account Smith's " possession of more than One Hundred (100) grams of cocaine as well as [Smith]'s previous record consisting of Twelve (12) felony convictions, Four (4) of which involve either Possession of Cocaine with Intent to Deliver or Delivery of Cocaine," in determining the appropriate sentence.
Smith appealed his conviction and challenged the sufficiency of the evidence to support the convictions for possession of cocaine with intent to deliver and unauthorized use of property to facilitate a crime. He also appealed the denial of his motions to suppress the fruits of a search and for a continuance. The court of appeals affirmed on February 9, 2011. Smith v. State, 2011 Ark.App. 110, 381 S.W.3d 144. On May 2, 2011, Smith filed a " Petition for New Trial," requesting that the circuit court set aside his judgment and conviction
and order a new trial pursuant to Rule 37.1.
In his Rule 37 petition, Smith contended that his trial counsel was ineffective for refusing to strike a juror after being told that the juror was an acquaintance of Smith's sister and did not like Smith; failing to make any argument as to the sufficiency of the evidence on the unauthorized-use-of-property charge; failing to properly move for a continuance because of an absent witness; and failing to object to the legality of the search of Smith's home despite being advised ...