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Appellant v. State

Supreme Court of Arkansas

May 26, 2016

BRUCE ALLEN ECHOLS, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

         PRO SE APPEAL FROM DENIAL OF PETITION FOR POSTCONVICTION RELIEF; PETITION FOR WRIT OF MANDAMUS; MOTION FOR TRANSCRIPT AND FOR LEAVE TO APPEND BRIEF; MOTION FOR EXTENSION TO FILE BELATED SUPPLEMENTAL BRIEF; MOTION FOR SEVEN-DAY ADDITIONAL EXTENSION TO FILE BELATED SUPPLEMENTAL BRIEF; MOTION FOR CONTINUANCE; MOTION TO DISMISS APPEAL [SALINE COUNTY CIRCUIT COURT, NO. 63CR-12-513] HONORABLE GRISHAM PHILLIPS, JUDGE

          Bruce Allen Echols, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.

          OPINION

          PER CURIAM

         Appellant Bruce Allen Echols was convicted by a jury of four counts of aggravated robbery and was sentenced to four concurrent terms of 360 months' imprisonment. The convictions and sentences were affirmed by the Arkansas Court of Appeals. Echols v. State, 2015 Ark.App. 304, 462 S.W.3d 352. Pending before this court is Echols's appeal from the denial of his petition for postconviction relief. Additionally, Echols has filed a petition for a writ of mandamus and pro se motions for copies of his trial transcript and for leave to append brief; a motion for extension to file a belated and supplemental brief; a motion for seven additional days to file a belated and supplemental brief, a motion for a continuance, and a motion to dismiss.

         Echols filed a timely verified petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2015) and alleged that both trial counsel and appellate counsel[1] were ineffective in litigating the factual and legal issues surrounding Echols's arrest and the subsequent search of his residence. On September 24, 2015, the trial court entered its order summarily denying relief without a hearing. The trial court cited Coulter v. State, 343 Ark. 22, 31 S.W.3d 826 (2000), and concluded that Echols's ineffective-assistance-of-counsel claims based on counsel's failure to successfully challenge his arrest as pretextual and the search of his residence as unsupported by probable cause involved matters that had been litigated at trial and on direct appeal and could not be reargued in a petition for relief pursuant to Rule 37.1. On October 15, 2015, Echols filed a motion to modify the order requesting that the trial court address his claims within the context of his ineffective-assistance-of-counsel allegations. The notice of appeal was filed on October 22, 2015.

         On November 2, 2015, the trial court denied the motion to modify because it had addressed all claims raised in the petition and further ruled that "[t]o the extent the court did not rule on any pending issue, argument, petition, or motion, the Court denies all as without merit." The trial court retained jurisdiction to enter this order because, although the notice of appeal had been filed, the record had not yet been lodged in this court. See Watkins v. State, 2010 Ark. 156, at 4–5, 362 S.W.3d 910, 914 (holding that the trial court loses jurisdiction to enter any further rulings in a Rule 37.1 proceeding when a notice of appeal is filed and the record is lodged in the appellate court); see also McLaughlin v. State, 2015 Ark. 335, at 2, 469 S.W.3d 360, 364 (per curiam). An appellant who files a notice of appeal prior to the entry of the order on the request for a ruling on an omitted issue may then amend the notice of appeal to include an appeal of the order disposing of the request, provided that the amendment to the notice of appeal is made within the thirty-day time frame permitted for filing the notice of appeal. Lewis v. State, 2012 Ark. 255, at 4–5, 423 S.W.3d 16, 19 (per curiam); see also Wright v. State, 359 Ark. 418, 423, 198 S.W.3d 537, 540-41 (2004); Ark. R. App. P.–Crim. 2(b)(2) (2015). Echols did not file an amended notice of appeal within this time limit, and we are precluded from reviewing the trial court's ruling on Echols's posttrial motion. Carter v. State, 2015 Ark. 166, at 1, 460 S.W.3d 781, 785 (Petitioner failed to amend the notice of appeal; appellate review was therefore limited to the original order denying Rule 37.1 relief.); McLaughlin, 2015 Ark. 335, at 2, 469 S.W.3d at 364.

         After the record had been lodged, Echols filed a petition for a writ of mandamus asking this court to compel the trial court to rule on his claims. However, a ruling on the mandamus petition would require appellate review of an order that Echols failed to appeal, and mandamus is not a substitute for appeal. Gran v. Hale, 294 Ark. 563, 565, 745 S.W.2d 129, 130 (1988). Mandamus is appropriate where a Rule 37.1 petitioner requested the trial court to provide a ruling on an omitted issue and the trial court failed to do so. Strain v. State, 2012 Ark. 184, at 7, 423 S.W.3d 1, 6. Here, the trial court provided a ruling. By contending in his mandamus petition that the trial court should address the merits of his allegations rather than concluding that the claims had been addressed and were otherwise without merit, Echols is attempting to use mandamus to compel a particular ruling; mandamus cannot be used to correct a decision already made. Wells v. Laser, 2010 Ark. 142, at 2; Burney v. Hargraves, 264 Ark. 680, 682, 573 S.W.2d 912, 913 (1978).

         On appeal from a trial court's ruling on Rule 37.1 relief, we will not reverse the trial court's decision granting or denying postconviction relief unless it is clearly erroneous. Kemp v. State, 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). 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. Id.

         At the outset, Echols argues that the trial court erroneously dismissed his Rule 37.1 petition based on the doctrine of "law of the case." The trial court did not rely on the doctrine of "law of the case, " but instead, relied on our decision in Coulter, 343 Ark. 22, 31 S.W.3d 826, for the proposition that Rule 37.1 does not provide an opportunity to reargue points that were settled at trial or on direct appeal. While the court of appeals did not settle issues in the context of Echols's ineffective-assistance-of-counsel claims, its opinion settled certain issues arising from Echols's underlying allegations that counsel unreasonably failed to establish that his arrest was pretextual and that the search-warrant affidavit was unreliable. In any event, we will affirm a trial court's decision if it reached the right result, albeit for the wrong reason. Jones v. State, 347 Ark. 409, 422, 64 S.W.3d 728, 737 (2002) (citing Harris v. State, 339 Ark. 35, 2 S.W.3d 768 (1999)). Furthermore, it is reversible error when the trial court fails to make findings to enable a meaningful review, unless it can be determined from the record that the petition is wholly without merit or where the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted. Henington v. State, 2012 Ark. 181, at 9–10, 403 S.W.3d 55, 62. For the reasons set forth below, a consideration of the record together with a review of the petition and briefs submitted by the parties conclusively demonstrates that relief is not warranted.

         In making a determination on a claim of ineffective assistance of counsel, we assess the effectiveness of counsel under the standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, (1984), whereby a petitioner must demonstrate that counsel made errors so serious that it prejudiced the outcome of the trial. Sartin v. State, 2012 Ark. 155, at 2–3, 400 S.W.3d 694, 697–98. Under the Strickland standard, the reviewing court indulges in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Id. In order to satisfy the prejudice part of the Strickland test, the petitioner must show that counsel's deficient performance prejudiced the defense, such that there is a reasonable probability that the outcome of his trial would have been different absent counsel's errors. Sartin, 2012 Ark. at 2–3, 400 S.W.3d at 697-698. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.

         On appeal, Echols restates allegations and arguments raised in his Rule 37.1 petition. In the first half of his appellate argument, Echols focuses on the litigation of issues surrounding his arrest, which Echols contends was pretextual. Echols argues that trial counsel overlooked crucial facts and failed to make relevant legal arguments which, according to Echols, would have conclusively established that his arrest was pretextual. Before addressing the merits of Echols's allegations a review of the circumstances surrounding Echols's arrest is necessary.

         Echols became a suspect in a bank robbery following a traffic stop of his brother, Terry Echols, after police learned that Terry had purchased items with money traced to the robbery. Testimony at the suppression hearing established that Terry told investigating officers that the money came from his brother Bruce, with whom he shared a residence, and that Bruce primarily drove the vehicle that Terry was driving that day. A search of the vehicle uncovered clothing similar to clothing described as being worn by the robber. After participating in the stop and investigation of Terry, Officer Bigelow, who was already aware of an outstanding warrant issued for Bruce Echols on an unrelated misdemeanor charge, proceeded to the residence shared by Terry and Bruce Echols, where he arrested Bruce for the purpose of questioning him about the robbery.

         Echols alleges that trial counsel failed to challenge what he describes as the "perjured" testimony of the arresting officer, Officer Bigelow. Echols insists that counsel was ineffective for failing to point out the following two inconsistencies in the testimony of Officer Bigelow: that Bigelow testified on direct examination that he saw the arrest warrant the day before Echols's arrest, but he further explained on cross-examination that he did not actually see the warrant itself, but saw a folder bearing Echols's name in the warrant file-cabinet; and that Bigelow testified on direct examination that Terry Echols had informed officers that he did not know ...


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