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
Allen Echols, pro se appellant.
Rutledge, Att'y Gen., by: Vada Berger, Ass't
Att'y Gen., for appellee.
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.
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 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.
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.
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).
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
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
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
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.
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.
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 ...