TYROME HARRIS, SR. APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO.
60CR-14-3398] HONORABLE LEON JOHNSON, JUDGE
Harris, pro se appellant.
Rutledge, Att'y Gen., by: Ashley Priest, Ass't
Att'y Gen., for appellee.
M. GLOVER, JUDGE
Harris appeals pro se from the trial court's
October 20, 2016 denial of his petition for postconviction
relief pursuant to Rule 37 of the Arkansas Rules of Criminal
Procedure. His overall contention is that the trial court
abused its discretion in rejecting his arguments that his
trial counsel was ineffective. In his notice of appeal,
Tyrome designated "the entire record, and all
proceedings, exhibits, evidence, and documents introduced in
evidence to be contained in the record on appeal." We
cannot reach the merits of the appeal because the record
before us does not contain the elements of the record relied
upon by the trial court in denying the petition. We therefore
remand to the trial court to supplement the record within
thirty days from the date of this opinion. Tyrome will then
have the option to file a new brief within fifteen days from
receipt of the supplemented record, and the State may respond
if it chooses.
pled guilty to the underlying offense of first-degree
battery, and as part of his plea, according to the October
20, 2016 order denying his Rule 37 petition, "[t]he
Court granted the State's motion to nolle
prosequi the child enhancement and the habitual
allegation." On March 7, 2016, Tyrome was sentenced to
fifteen years in the Arkansas Department of Correction, with
an additional five years' suspended imposition of
sentence. He was given credit for 535 days spent in custody.
The sentencing order was filed on March 11, 2016.
April 22, 2016, Tyrome filed his Rule 37 petition for
postconviction relief, alleging four bases to support his
contention that his counsel was ineffective: 1) counsel had a
conflict of interest with the alleged victim, 2) the plea
agreement was for no enhancements or habitual offender, 3)
incorrect jail-time credit, and 4) the failure to advise him
that he would be required to serve 100 percent of his
sentence because of a prior felony conviction. On June 7,
2016, Tyrome filed a motion seeking a two-page extension to
his Rule 37 petition, arguing that it was needed "to
show facts that will support grounds that may lead to the
correction of my sentence."
was no hearing on the petition. Rule 37.3(a) provides, "If
the petition and the files and records of the case
conclusively show that the petitioner is entitled to no
relief, the trial court shall make written findings to that
effect, specifying any parts of the files, or records that
are relied upon to sustain the court's findings."
The October 20, 2016 order denying Tyrome's Rule 37
petition provided in pertinent part:
Petitioner's first claim for post-conviction relief
states that trial counsel previously represented the victim
in this case on another matter. Petitioner states no
additional facts to substantiate this allegation.
Furthermore, Petitioner has not raised this issue before the
Court neither in his many letters to the Court nor his many
appearances before the Court. The Court finds that Petitioner
has not met the factual burden on this argument, and is
therefore entitled to no relief.
Petitioner's second ground for post-conviction relief
claims that the negotiated plea agreement included a
provision to nolle-prosequi case 60CR-14-2754 and
any enhancements including the habitual offender allegation.
On February 8, 2016, Petitioner appeared represented by
counsel to enter a plea. Conditioned on the Court's
acceptance of a plea of guilty, the State made a motion to
nolle prosequi case 60CR-14-2754, the child
enhancement, and the habitual allegation. The Court then
inquired of Petitioner whether he understood the charges,
penalty range, rights he was giving up by entering a plea of
guilty, whether he completed and initialed the plea
statement, and whether Petitioner was freely, knowingly, and
voluntarily pleading guilty, all of which the Petitioner
responded in the affirmative. The Court accepted the plea as
knowingly and voluntarily entered at which time the
State's motion to nolle prosequi case
60CR-14-2754, the child enhancement, and habitual allegation
was granted. The Court finds no merit in Petitioner's
argument on this ground and denies any relief on this basis.
Petitioner's third claim for post-conviction relief
states that counsel was ineffective for failing to request
that his jail credit run concurrent with four other cases for
which Petitioner had previously been sentenced. The Court has
no authority over how jail credit is applied through the
Department of Correction. Jail time credit is appropriate
when a defendant's pretrial incarceration is due to his
inability to make bail, but is inappropriate for time served
in connection with wholly unrelated charges based on conduct
other than for which the defendant is ultimately sentenced.
Boone v. State, 270 Ark. 83, 603 S.W.2d 410 (1980).
Because Petitioner has demonstrated no claim appropriate for
post-conviction relief, no relief is available on this
Petitioner's final claim for relief states that counsel
was ineffective for failing to inform Petitioner that he
would be required to serve 100% of his sentence before
becoming parole eligible. Petitioner further claims that he
was led to believe he would only be required to serve 1/3 or
5 years of the sentence. Petitioner claims this omission
rendered his plea involuntary. A review of the record from
the sentencing hearing held March 7, 2016 conclusively shows
that trial counsel explicitly stated twice on the record that
Petitioner would have to serve his sentence day-for-day
(Transcript p. 16) and that Petitioner would have to serve
100% of his sentence (Transcript p. 15). The Court finds this
claim to be wholly without merit and denies any relief on
same date as the order denying the petition was entered, the
trial court entered a separate order denying the request for
a two-page extension, concluding that the court's
disposition "of defendant's petition through written
findings, " rendered the motion for a two-page extension
November 1, 2016,  Tyrome filed a motion for reconsideration.
He argued that the trial court had failed to address his
contentions that he pled guilty based on misinformation and
that he would not have pled guilty if he had realized he
would have to serve 100 percent of his sentence. On November
28, 2016, Tyrome's notice of appeal was electronically
filed. His notice provides that he appeals from the final
order of the trial court entered on October 20, 2016. By
order entered on December 7, 2016, the trial court denied the