APPEAL FROM THE COLUMBIA COUNTY CIRCUIT COURT [NO.
14CR-10-191], HONORABLE HAMILTON H. SINGLETON, JUDGE REVERSED
Collins, pro se appellant.
Rutledge, Att'y Gen., by: Christian Harris, Ass't
Att'y Gen., for appellee.
DANKEMP, Chief Justice
a pro se appeal from an order of the trial court denying
appellant Khalin Collins's pro se petition for
postconviction relief pursuant to Rule 37.1 of the Arkansas
Rules of Criminal Procedure (2013). Collins raised six grounds
for relief in the trial court based on allegations of
ineffective assistance of counsel. The trial court denied
relief without conducting a hearing.
appeal, Collins raises two of his original claims of
ineffective assistance of counsel: (1) that trial counsel
failed to present testimony from a known witness and other
supporting evidence establishing an alibi on the date the
crimes were committed; and (2) that counsel failed to file a
motion to dismiss on the ground that Collins's right to
speedy trial had been violated. As stated, the trial court did
not conduct an evidentiary hearing and entered an order
concluding that the decision to call a witness is one of
trial strategy; it further found that, based on a review of
the docket sheet, all but nine months between Collins's
arrest and trial were specifically excluded for purposes of
37.3 of the Arkansas Rules of Criminal Procedure (2013)
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. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35
(2003). When the trial court concludes, without a hearing,
that the petitioner is not entitled to relief, Rule 37.3(a)
requires the trial court to make written findings specifying
the parts of the record that form the basis of the trial
court's decision. Id. If the trial court fails
to make such findings, it is reversible error, unless the
record before this court conclusively shows that the petition
is without merit. Id. It is not incumbent on this
court to scour the record to affirm. Turner v.
State, 2016 Ark. 96, 486 S.W.3d 757.
written findings by the trial court are required to
demonstrate that Collins was entitled to no relief. Because
the record before this court does not conclusively show that
Collins's ineffective-assistance-of-counsel claims are
without merit, we reverse and remand for compliance with Rule
37.3 and direct the trial court to conduct an evidentiary
hearing and to supplement the record.
initial matter, we address the State's contention that
Collins's Rule 37.1 petition was untimely filed. In
February 2013, a jury convicted Collins of one count of
commercial burglary, one count of theft of property over $2,
500, one count of Class Y felony arson, and two counts of
Class C felony arson. The Arkansas Court of Appeals affirmed
three of Collins's convictions but reversed the
conviction for Class Y felony arson. Collins v.
State, 2014 Ark.App. 551, 444 S.W.3d 889. This court
denied the parties' cross-motions for review, and the
mandate was issued on January 22, 2015. Accordingly, Collins
was resentenced and a second amended sentencing order was
entered by the trial court on February 20, 2015. Thereafter,
Collins filed a timely pro se Rule 37.1 petition on May 13,
2015. See Ark. R. Crim. P. 37.2(c)(iv) (2013)
(stating in pertinent part that if no appeal is taken from a
resentencing order the petition must be filed within ninety
days of the entry of the judgment). Here, no appeal was taken
from the resentencing order filed on February 20, 2015, and
Collins's Rule 37.1 petition was due on May 21, 2015.
Therefore, his petition filed on May 13, 2015, was timely.
standard of review requires that we assess counsel's
effectiveness under the two-prong standard set forth by the
United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). Johnson v.
State, 2018 Ark. 6, 534 S.W.3d 143. In asserting
ineffective assistance of counsel pursuant to
Strickland, the petitioner first must show that
counsel's performance was deficient. Id. This
requires a showing that counsel made errors so serious that
he or she was not functioning as the "counsel"
guaranteed by the Sixth Amendment. Id.
Failure to Call an Alibi Witness
petitioner alleges ineffective assistance of counsel
concerning the failure to call witnesses, it is incumbent on
the petitioner to name the witness, provide a summary of the
testimony, and establish that the testimony would have been
admissible into evidence. Id. To demonstrate
prejudice, the petitioner is required to establish that there
was a reasonable probability that, had counsel presented the
witness, the outcome of the proceeding would have been
petition filed below, Collins named a specific witness who
resided in Panama City, Florida, and who allegedly would
verify that Collins was working for a construction company in
Florida when the crimes for which he was convicted occurred.
In support of his claim, Collins points to a motion for
continuance filed by his first attorney, Robert Jeffrey. A
review of the record on appeal reveals that Collins's first
counsel asked for a continuance for the purpose of
investigating the above-referenced alibi evidence and
testimony. Attached to the motion was an affidavit executed
by counsel as well as documents from a construction company
in Florida confirming that Collins was hired in July 2009 and
was working there during the relevant time frame. Collins
contends that his second counsel, James Bennett, who
conducted the trial, failed to follow through with an
investigation of this alleged alibi evidence. As stated
above, the trial court denied this claim, concluding that the
decision to call a witness was one of trial strategy and did
not represent ineffective assistance of counsel.
court reviews the trial court's decision on Rule 37.1
petitions for clear error. Russell v. State, 2017
Ark. 174, 518 S.W.3d 674. A finding is clearly erroneous
when, although there is evidence to support it, the appellate
court, after reviewing the totality of the evidence, is left
with the definite and firm ...