FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-12-961]
HONORABLE CHARLES E. CLAWSON, JR., JUDGE
Law Firm, by: Michael K. Kaiser, Megan M. Wilson, and William
O. "Bill" James, Jr., for appellant.
Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't
Att'y Gen., for appellee.
KENNETH S. HIXSON, JUDGE
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.
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.
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. 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.
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.
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.
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.
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.
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
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.
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. ...