FROM THE SEBASTIAN COUNTY CIRCUIT COURT. NO. CR-2012-1189.
HONORABLE J. MICHAEL FITZHUGH, JUDGE.
Law Office, P.A., by: R. Kevin Barham, for appellant.
Rutledge, Att'y Gen., by: Kristen C. Green, Ass't
Att'y Gen., for appellee.
K. WOOD, Associate Justice. DANIELSON, J., concurs.
K. WOOD, Associate Justice
Sandrelli was convicted of four counts of rape. After our
court of appeals affirmed the convictions, see
Sandrelli v. State, 2015 Ark.App. 127, Sandrelli
filed a Rule 37 petition alleging three instances of
ineffective assistance of counsel. The circuit court denied
the petition without a hearing by a written order. Sandrelli
has appealed and argues that he was entitled to a hearing on
his allegations. We affirm in part and reverse and
remand in part.
criminal case began when Robert Sandrelli's son accused
him of rape. A jury trial was held in August 2013. The State
presented evidence from the victim and law-enforcement
officials. Sandrelli testified in his own defense and denied
all the allegations. The defense also presented evidence from
five character witnesses who attested to Sandrelli's
character for truthfulness. The jury could not reach a
unanimous verdict, so the court declared a mistrial. The
State refiled the charges, and second jury trial was held in
September 2013. The State's case was substantially
similar to the one it presented in the first trial. But in
the second trial, the defense presented no witnesses. The
jury was able to reach a verdict and convicted Sandrelli of
four counts of rape.
the court of appeals issued its mandate, Sandrelli filed a
Rule 37 petition
wherein he alleged ineffective assistance of counsel. The
petition contained three primary allegations of his
attorney's deficient performance during the second jury
trial: (1) the attorney had resigned as managing public
defender and was under emotional and professional stress; (2)
the attorney failed to call any witnesses on Sandrelli's
behalf; and (3) the attorney unilaterally decided that
Sandrelli should not testify. The circuit court denied the
petition without a hearing. It ruled that the first
allegation was conclusory and could not form the basis for a
claim of ineffective assistance. The court further ruled that
the decisions regarding which witnesses to call and whether
Sandreilli would testify were matters of trial strategy,
which also forms no basis for postconviction relief.
court does not reverse a denial of postconviction relief
unless the circuit court's findings are clearly
erroneous. Polivka v. State, 2010 Ark. 152, 362
S.W.3d 918. " A finding is clearly erroneous when,
although there is evidence to support it, the appellate court
after reviewing the entire evidence is left with the definite
and firm conviction that a mistake has been committed."
State v. Barrett, 371 Ark. 91, 95, 263 S.W.3d 542,
37.3 of the Arkansas Rules of Criminal Procedure provides
that an evidentiary hearing should be held in a
postconviction proceeding unless the files and record of the
case conclusively show that the prisoner is entitled to no
relief Wooten v. State, 338 Ark. 691, 1 S.W.3d 8
(1999). If the files and the record show that the petitioner
is not entitled to relief, the circuit court is required to
make written findings to that effect. Ark. R.Crim. P.
37.3(a). Conclusory allegations that are unsupported by facts
do not provide a basis for either an evidentiary hearing or
postconviction relief Henington v. State, 2012 Ark.
181, 403 S.W.3d 55.
assess the effectiveness of counsel under the two-prong
standard set forth by the Supreme Court of the United States
in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). Under this standard, the
petitioner must first show that counsel's performance was
deficient. Feuget v. State, 2015 Ark. 43, 454 S.W.3d
734. This requires a showing that counsel made errors so
serious that counsel deprived the petitioner of the counsel
guaranteed to the petitioner by the Sixth Amendment.
Id. Second, the deficient performance must have
resulted in prejudice so pronounced as to have deprived the
petitioner of a fair trial whose outcome cannot be relied ...