FROM THE COLUMBIA COUNTY CIRCUIT COURT [NO. 14CR-2006-79-5]
HONORABLE DAVID W. TALLEY, JR., JUDGE
Wesley Hall and Sarah M. Pourhosseini, for appellant.
Rutledge, Att'y Gen., by: Rebecca Kane, Ass't
Att'y Gen., for appellee.
K. WOOD, Associate Justice
appeal involving an allegation of ineffective assistance of
counsel returns to us after we remanded for more specific
findings. In the first appeal, Trozzie Turner, who was
convicted of multiple drug offenses, argued that his defense
counsel should have moved to dismiss the charges based on a
speedy-trial violation. See Turner v. State, 2016
Ark. 96, 486 S.W.3d 757. We affirmed on a separate allegation
but remanded for "specific findings as to which periods
of delay are excludable under our speedy trial rules."
Id. at 8-9, 486 S.W.3d at 763. Upon remand, the
circuit court found that sufficient excludable time periods
should be charged against Turner such that no speedy-trial
violation occurred. Accordingly, the court ruled, defense
counsel was not ineffective for failing to move to dismiss
the charges on that ground. Turner now appeals this finding.
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 (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 on as just. Id. Both
showings are necessary before it can be said that the
conviction resulted from a breakdown in the adversarial
process that renders the result unreliable. Id.
remand, the circuit court held that the first prong of the
Strickland test was not met and once again denied
relief. The court determined that counsel's failure to
raise a speedy-trial argument was not deficient because there
was no speedy-trial violation. We do 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, 545 (2007).
Rules of Criminal Procedure 28.1 and 28.2(a) require the
State to bring a defendant to trial within twelve months,
excluding periods of delay specified in Ark. R. Crim. P.
28.3(c). Rule 28.3 provides a period of delay resulting from
a continuance granted at the request of the defendant or his
counsel will be excluded in computing the time for trial. It
further states that "[a]ll continuances granted at the
request of the defendant or his counsel shall be to a day
certain, and the period of delay shall be from the date the
continuance is granted until such subsequent date contained
in the order or docket entry granting the continuance."
record reflects that Turner was arrested on March 9, 2006,
and his trial was held on October 8, 2008, or 944 days after
his arrest, and 581 days in excess of one year. Thus, as we noted
in the first appeal, "if trial counsel had moved for a
dismissal, he would have made a prima facie showing of a
violation of the rule, and the burden would have shifted to
the State to show good cause for the delay."
Turner, 2016 Ark. 96, at 7, 486 S.W.3d at 762
(citing Camargo v. State, 346 Ark. 118, 55 S.W.3d
255 (2001)). Thus, whether counsel was ineffective for
failing to raise the issue first depends on whether the State
would have been able to prove that there were excluded
periods sufficient to bring appellant's trial within the
one-year period, which in this case would be 581 days.
argues that three of the continuances granted by the trial
court did not establish a basis for tolling speedy trial.
Turner's defense counsel, David Price, testified that he
sought every continuance. Turner also acknowledges that
delays resulting from continuances given at the request of
defense counsel are excluded in calculating the time for a
speedy trial. Rather, he argues that certain time periods
following his request for a continuance are not excludable
because neither the order nor the docket entry granting these
continuances continued the case to a day certain.
first contested order was entered on April 25, 2007; it
stated that "[t]he period of time from May 10, 2007,
until the date of defendant's jury trial in this matter
shall be an excludable period for the purposes of speedy
trial." The second order was dated August 22, 2007; it
provided that "[f]or the purposes of speedy trial, the
time from August 22, 2007, until the date that the new trial
is set shall be excludable for speedy trial purposes."
The third order was dated November 13, 2007, and it likewise
excluded the time period from that date "until the date
that the new trial is set."
maintains that Rule 28.3 requires an order granting a
continuance to include an actual date, rather than a
to-be-determined trial date. We have not interpreted Rule
28.3 in this manner. Turner's primary authority for this
argument is Bradford v. State, 329 Ark. 620, 953
S.W.2d 549 (1997). In that case, we reversed and dismissed a
defendant's conviction because his right to speedy trial
had been violated. The primary flaw there was poor record
keeping by the circuit court. Many continuances were granted
without attributing the delay to the defendant; indeed, in
some instances the order granting the continuance was absent
from the record. "[S]ince the record contains no copy of
the order . . . the contemporaneous record does not
demonstrate that [the] delay . . . was attributable to the
appellant." Id. at 624, 953 S.W.2d at 551.
similar flaw exists here. Each order stated that the period
following the continuance until the date a trial was set
would be an excluded period under the Arkansas Rules of
Criminal Procedure. It is also undisputed that each
continuance was granted at Turner's request. Contrary to
Turner's argument, the failure to continue the
proceedings until a date certain does not result in automatic
reversal. See Standridge v. State, 357 Ark. 105,
117, 161 S.W.3d 815, 821 (2004). "[W]hen a case is
delayed by the accused and that delaying act is memorialized
by a record taken at the time it occurred, that record may be
sufficient to satisfy the requirements of Rule 28.3."
Id. at 117, 161 S.W.3d at 821; Miles v.
State, 348 Ark. 544, 75 S.W.3d 677 (2002). The circuit
court found that defense counsel was not deficient for
failing to raise a speedy-trial argument when defense counsel
requested all continuances "with consent of the