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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., Little Rock, for appellant.
Leslie
Rutledge, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., for
appellee.
OPINION
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, 2019 WL 2364460, 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),
Page 186
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 ...