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Collins v. State

Supreme Court of Arkansas

April 12, 2018



          Khalin Collins, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellee.

          JOHN DANKEMP, Chief Justice

         This is 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).[1] 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.

         On 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.[2] 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 speedy trial.

         Rule 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.

         Sufficient 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.

         As an 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.

         Our 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.

         I. Failure to Call an Alibi Witness

         When a 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 different. Id.

         In the 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[3] 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.

         This 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 ...

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