Gould v. State

          APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-12-961] HONORABLE CHARLES E. CLAWSON, JR., JUDGE

          James Law Firm, by: Michael K. Kaiser, Megan M. Wilson, and William O. "Bill" James, Jr., for appellant.

          Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't Att'y Gen., for appellee.

          KENNETH S. HIXSON, JUDGE

         Appellant Cortez Gould appeals after the Faulkner County Circuit Court entered an order denying his petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37. Gould raises four points on appeal claiming ineffective assistance by his trial counsel. We affirm.

         Gould was convicted by a jury of aggravated robbery and theft of property, with sentence enhancements for using a firearm in the commission of the offenses. Gould was sentenced to forty years in prison. Gould appealed from his convictions, arguing that the trial court erred in denying his motion for mistrial due to alleged juror misconduct. We affirmed his convictions in Gould v. State, 2016 Ark.App. 124, 484 S.W.3d 678, and our mandate was issued on March 15, 2016.

         Gould filed in the trial court a pro se petition for postconviction relief under Rule 37, claiming ineffective assistance of counsel and asking for a new trial. Gould's Rule 37 petition was file-marked on May 25, 2016, which was seventy-one days after our mandate issued.^[1] After a hearing, the trial court entered an order denying Rule 37 relief on April 19, 2018. Gould appealed from the trial court's April 19, 2018 order.

         After Gould filed his brief in this appeal, but before the case was submitted, the State filed a motion to dismiss Gould's appeal. In its motion, the State argued that Gould's Rule 37 petition was untimely filed in the trial court, and that there was a lack of compliance with the prison mailbox rule. The State's motion to dismiss was passed until submission of the case.

         The case was submitted, and in Gould v. State, 2019 Ark.App. 333, we remanded to supplement the record with the postmarked envelope in which Gould mailed his petition from his confinement in a correctional facility. Arkansas Rule of Criminal Procedure 37.2(g), which is sometimes referred to as the prison mailbox rule, provides that "[t]he envelope in which the petition is mailed to the circuit clerk shall be retained by the circuit clerk and included in the record of any appeal of the petition." In remanding to supplement the record, we concluded that the postmarked envelope, which was not contained in the original record lodged with our clerk, was necessary for our review of whether Gould's petition was timely filed.

         The record has now been supplemented, and the postmarked envelope shows that Gould mailed his petition to the Faulkner County Circuit Clerk on May 9, 2016. Inexplicably, the petition was not file-marked by the circuit clerk until May 25, 2016.

         Arkansas Rule of Criminal Procedure 37.2(c)(ii) provides that "[i]f an appeal is taken of the judgment of conviction, a petition claiming relief under this rule must be filed in the circuit court within sixty (60) days of the date the mandate is issued by the appellate court." The prison mailbox rule, Rule 37.2(g), provides that upon satisfaction of certain conditions, the petition shall be deemed filed on the date of its deposit in the facility's legal mail system. In its motion to dismiss, the State contends that Gould cannot avail himself of the mailbox rule due to technical deficiencies with the required notarized statement attached to Gould's petition.^[2]

         We conclude that Gould's Rule 37 petition was timely under our supreme court's reasoning in McClinton v. State, 2016 Ark. 461, 506 S.W.3d 227. In that case McClinton, an inmate, provided no notarized statement whatsoever with his pro se petition, so the supreme court held that he did not get the benefit of the prison mailbox rule. Nonetheless, in McClinton, the envelope containing the petition was postmarked September 16, 2016, which was five days before the September 21, 2016 due date under Rule 37.2(c)(ii). The petition was not filed in circuit court until September 22, 2016, which McClinton claimed was a clerical error. The supreme court found the postmark significant and stated that "under these unique facts and very limited circumstances, " McClinton's Rule 37 petition should have been filed prior to the sixty-day deadline, and the supreme court remanded for the circuit clerk to file-mark McClinton's petition as of September 21, 2016.

         In this case, the sixty-day deadline for filing Gould's petition was May 16, 2016. The supplemental record conclusively shows that Gould's affidavit was made under penalty of perjury and signed pro se. Further, the sworn petition contains a certificate of service to the circuit clerk and averred that the appellant was incarcerated. In addition, the envelope was posted prepaid and contained a stamp that indicated the envelope was mailed from the ADC, Cummins Unit on May 9, 2016, well within the sixty-day period. As such, we conclude that the petition was timely filed in circuit court prior to the sixty-day deadline. See McClinton, supra. Therefore, the State's motion to dismiss is denied, and we reach the merits of Gould's appeal.

         Gould was accused of committing armed robbery at a Cricket cellular store in Conway on the morning of September 7, 2012. Judy McCarthy and Lori Chambliss were working at the store when it was robbed. ...