Engram v. State

• Decision Date: 31 October 2013
• Docket Number: No. CR–12–694.,CR–12–694.
• Citation: 2013 Ark. 424,430 S.W.3d 82
• Parties: Andrew R. ENGRAM, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2013 Ark. 424

430 S.W.3d 82

Andrew R. ENGRAM, Appellant

v.STATE of Arkansas, Appellee.

No. CR–12–694.

Supreme Court of Arkansas.

Oct. 31, 2013.

Jenniffer Horan, Public Defender, by: Julie Pitt, Ass't Federal Public Defender; and Montgomery, Adams & Wyatt, PLC, Little Rock, by: Dale Adams, for appellant.

Dustin McDaniel, Att'y Gen., by: Rachel H. Kemp, Ass't Att'y Gen., for appellee.

DONALD L. CORBIN, Justice.

Appellant Andrew R. Engram appeals the order of the Pulaski County Circuit Court dismissing his petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.5 (2013). For reversal, Engram asserts the following points of error: (1) both the circuit court and this court had jurisdiction to hear his Rule 37 petition; (2) a hearing was warranted on whether Engram established good cause for filing a belated Rule 37 petition; (3) a hearing was warranted on whether Engram's waiver of his right to file a Rule 37 petition was valid; (4) this court should hold that the protections of Rule 37.5 extend to petitioners who waive the right to file a Rule 37 petition under the advice of counsel; (5) under the rationale of Anders v. California this court should hold that potentially meritorious issues must be raised by appointed counsel in death cases on Rule 37; (6) this court should extend the mandatory Robbins review to Rule 37.5 in death cases. Because the circuit court erred in summarily dismissing Engram's Rule 37.5 petition, we reverse and remand for proceedings consistent with this opinion.

Engram was charged with one count each of capital murder and rape in connection with the death of Laura White, a security guard working at Sears in North Little Rock. On January 28, 1999, a jury convicted him on both counts and sentenced him to death. This court affirmed his sentence and conviction on May 4, 2000. See Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000), cert. denied,531 U.S. 1081, 121 S.Ct. 783, 148 L.Ed.2d 679 (2001). This court's mandate subsequently issued on January 12, 2001. Shortly thereafter, the circuit court appointed attorney Lea Ellen Fowler to represent Engram in postconviction proceedings. At the first status hearing following her appointment, Fowler announced that she was still in the process of reviewing the case. The circuit court then scheduled the next status hearing for June 25, 2001. The deadline for filing a Rule 37 petition passed without any petition being filed on Engram's behalf. At the June 25 hearing, Fowler announced that she had not identified any issues to pursue in a Rule 37 petition and instead would proceed with a habeas petition in federal court. The circuit court briefly inquired of Engram if he was agreeable with his attorney's decision, and Engram replied that he was.

On January 9, 2002, Engram filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas. The next year, on April 18, 2003, Engram requested leave from the federal court to file an amended habeas corpus petition in order to raise additional grounds for relief, including a claim that he is mentally retarded and that his execution is barred under the Supreme Court's holding in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The federal district court granted Engram's motion to amend, but also raised sua sponte the question of whether Engram had presented his mental-retardation claim in state court. Ultimately, the federal district court directed Engram to move to dismiss his amended petition without prejudice and granted him leave to file a second amended petition that would relate back to his original, timely filed petition. Engram filed the motion as instructed, and the federal court granted it on October 7, 2003.

Thereafter, on November 5, 2003, Engram filed in this court a “Motion to Recall the Mandate and Reopen the Case and Brief in Support.” The motion was submitted as a case, and a briefing schedule was established.¹ In his brief to this court, Engram asserted that this court should recall its mandate and reopen his case based on the fact that, in 2002, the Supreme Court decided in Atkins that the execution of mentally retarded individuals violates the Eighth Amendment's prohibition on cruel and unusual punishment. This court denied Engram's motion. Engram v. State, 360 Ark. 140, 200 S.W.3d 367 (2004)( Engram II ). In so doing, this court in Engram II reasoned that the issue of mental retardation could have been resolved by the trial court, if only Engram had presented evidence bearing on the issue and had asked for the circuit court to rule on the issue. Id. The court also rejected Engram's contention that his case was similar to Robbins v. State, 353 Ark. 556, 354 Ark. 1, 114 S.W.3d 217 (2003) (supplemental opinion on denial of reh'g), a case where this court had previously recalled its mandate. In concluding that Engram's case was different, this court explained as follows:

This is simply not a case like Robbins, where the alleged error was an error in this court's own review of the case on appeal, and this court was asked to reopen the case to address its own error. Because Robbins was so strictly limited to its facts, this court made it clear that it would not expand the nature of cases in which it will recall a mandate it has already issued. Here, since it was Engram's burden to do so, he should have obtained a ruling on his mental retardation issue from the trial court before his trial ever started.

Engram II, 360 Ark. at 151, 200 S.W.3d at 372.

This court in Engram II also denied Engram's alternative request that he be allowed to file a petition for postconviction relief. In so doing, this court reasoned that counsel had been appointed for Engram, that Engram had agreed with his attorney's decision to forgo Rule 37 relief, and that the time for filing any such petition had lapsed.² This court further rejected Engram's attempted reliance on Jackson v. State, 343 Ark. 613, 37 S.W.3d 595 (2001), and Porter v. State, 339 Ark. 15, 2 S.W.3d 73 (1999), cases in which this court allowed petitioners to file belated Rule 37 petitions, as factually distinguishable. The court in Engram II concluded as follows:

Here, unlike the situations in Jackson and Porter, there has been no confusion about when filing deadlines occurred or about whether counsel had been appointed. Engram and his Rule 37 attorney made a deliberate decision not to pursue postconviction relief. There is no provision in our law that provides for petitions for “post-postconviction relief,” i.e., a mechanism for filing an ineffective-assistance-of-counsel petition with respect to the counsel appointed to handle the Rule 37 petition. Engram's state court remedies with respect to postconviction relief have been exhausted.

Id. at 154, 200 S.W.3d at 375.

Following this court's decision in Engram II, attorneys from the office of the Federal Public Defender for the Eastern District of Arkansas filed a motion in this court requesting that they be appointed to represent Engram before this court and all other Arkansas state courts. This motion was filed on September 15, 2006. On September 27, 2006, before this court ruled on the motion, those same attorneys filed a petition for postconviction relief on Engram's behalf in the Pulaski County Circuit Court. Therein, Engram asserted numerous allegations of ineffective assistance of trial counsel, as well as allegations that he was mentally retarded and therefore could not be executed. Along with the petition, Engram also filed a motion for leave to file an overlength brief, and a memorandum of law regarding the timeliness of the Rule 37 petition. Thereafter, on October 5, 2006, this court entered an order denying the federal public defender's appointment request.

Engram's Rule 37 petition inexplicably languished in the circuit court for almost six years until April 30, 2012, when the circuit court entered an order summarily dismissing the petition as untimely. No hearing was ever held on the petition or the allegation of its timeliness. Once again, attorneys from the Federal Public Defender's Office filed a motion with this court seeking to be recognized as counsel for Engram. This court granted the motion, and Engram filed a timely notice of appeal from the order denying his request for Rule 37 relief.

As an initial matter, we must address the State's contention that we should dismiss the instant appeal because of a lack of jurisdiction. According to the State, Engram's failure to file a petition within the ninety-day time limit set forth in Rule 37.5(e) is a procedural bar to the relief he now seeks. Engram asserts that he is not procedurally barred in this instance because the circuit court was never divested of its jurisdiction. Alternatively, Engram asserts that he is at least entitled to a hearing on the issue of whether he has established good cause for filing a belated Rule 37 petition.

It is true that this court has stated that the filing deadline of Rule 37.2 is jurisdictional in nature. Murphy v. State, 2013 Ark. 243, 2013 WL 2382727 (per curiam); O'Brien v. State, 339 Ark. 138, 3 S.W.3d 332 (1999) (per curiam). If the time limitations of the rule are not met, a trial court lacks jurisdiction to consider a Rule 37.1 petition. Holliday v. State, 2013 Ark. 47, 2013 WL 485726 (per curiam). Where the circuit court lacks jurisdiction, the appellate court also lacks jurisdiction. Id. (citing Winnett v. State, 2012 Ark. 404, 2012 WL 5304090 (per curiam)); see also Clark v. State, 362 Ark. 545, 210 S.W.3d 59 (2005).

Contrary to the State's assertion, however, this court has never held that the ninety-day time limitation of Rule 37.5(e) is an absolute jurisdictional bar. Its reliance on this court's decision in Porter, 339 Ark. 15, 2 S.W.3d 73, to support such an argument, is simply unavailing. In Porter, where we considered an untimely filing of a Rule 37 petition in a...