Bohanan v. State, CR

• Decision Date: 03 March 1997
• Docket Number: No. CR,CR
• Citation: 327 Ark. 507,939 S.W.2d 832
• Parties: James Monroe BOHANAN, II Appellant, v. STATE of Arkansas, Appellee. 95-1180.
• Court: Arkansas Supreme Court

Page 832

939 S.W.2d 832

327 Ark. 507

James Monroe BOHANAN, II Appellant, v. STATE of Arkansas, Appellee.

No. CR 95-1180.

Supreme Court of Arkansas.

March 3, 1997.

Charles Karr, Fort Smith, for Appellant.

Winston Bryant, Attorney General, J. Brent Standridge, Assistant Attorney General, Little Rock, for Appellee.

PER CURIAM.

The appellant, James Bohanan, was convicted of aggravated robbery and was sentenced to fifteen years in the Arkansas Department of Correction. The Court of Appeals affirmed his conviction and sentence in Bohanan v. State, CACR 94-227, 1995 WL 23397 (January 18, 1995). Within thirty days of the date the mandate was issued from the direct appeal, Bohanan filed a petition for postconviction relief pursuant to Ark. R.Crim. P. 37. In the petition, Bohanan argued that he was entitled to relief because his counsel was ineffective, and because he suffered other constitutional violations during his trial. The Trial Court denied relief without a hearing. Because we find that the Trial Court's order is not in compliance with Rule 37.3(a), we reverse and remand.

In his petition, Bohanan argued that his counsel was ineffective at several different points during his trial. He contended that his attorney failed to file a motion for change of venue; that he failed to investigate several alibi witnesses supplied by Bohanan; that he failed to object to the introduction of a sleeping bag into evidence; that he failed to lodge several objections during the examination of witnesses; that counsel failed to request that the jury visit the restaurant that was the site of the robbery; and that he failed to move for a mistrial when the State attempted to introduce photocopies of the money that was stolen. Bohanan also argued that he was entitled to postconviction relief because there was an illegal search of his vehicle; because of prosecutorial misconduct; because of alleged jury tampering; and because his right to counsel was "constructively denied" as the result of frequent moves between detention facilities.

In response to Bohanan's petition, the State filed a brief with several affidavits in the Trial Court. The affidavits were apparently included to refute the allegations of jury tampering and the illegality of the search of Bohanan's vehicle. The Trial Court, without a hearing, denied relief in the following order:

Now on this day came before the Court, Defendant's Petition for Rule 37 Relief, the State's response to the Petition and Memorandum in support, and Defendant's response. And, from the pleadings, the Court doth find and Order:

I.

Defendant's Petition should be denied.

On appeal, Bohanan argues that the Trial Court erred in denying his petition without a hearing, and that he should have been appointed counsel to assist in his preparation of the Rule 37 petition. Also, Bohanan contends that the Trial Court erred in denying his ineffective assistance of counsel claims, and that the Trial Court should not have allowed the State to submit affidavits, in lieu of a hearing, in response to the petition for postconviction relief.

In response, the State contends that a hearing was not necessary because Bohanan failed to allege any prejudice in connection with his ineffective assistance of counsel claims. Therefore, it was apparent from the face of the petition that a hearing was not warranted. The State further contends that, as a result of Bohanan's failure to allege prejudice, the Trial Court was correct to rule against him on the ineffective assistance of counsel claims, and that there was no reversible error in allowing the affidavits in lieu of a hearing. Finally, in response to Bohanan's claim involving the appointment of counsel, the State argues that there is no right to counsel in postconviction...