Finley v. State, CR

• Decision Date: 02 May 1988
• Docket Number: No. CR,CR
• Citation: 748 S.W.2d 643,295 Ark. 357
• Parties: Neil S. FINLEY, Appellant, v. STATE of Arkansas, Appellee. 87-200.
• Court: Arkansas Supreme Court

Page 643

748 S.W.2d 643

295 Ark. 357

Neil S. FINLEY, Appellant, v. STATE of Arkansas, Appellee.

No. CR 87-200.

Supreme Court of Arkansas.

May 2, 1988.

Larry Dean Kissee, Mammoth Spring, for appellant.

Lynley Arnett, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

This appeal arises from appellant's request for post-conviction relief from a jury verdict on July 18, 1984, finding him guilty of burglary and theft charges, and another conviction judgment dated September 7, 1984, which resulted from appellant's pleas of guilty to four additional counts of burglary and theft charges. The trial court rejected appellant's contentions that he had been wrongfully denied the procedural safeguards of the Interstate Agreement on Detainers Act (IAD Act) and that his counsel had been ineffective by failing to invoke the IAD Act before and at the time of his convictions. Because the law and the record support the trial court's holding, we affirm.

Appellant argues that Article IV of the IAD Act became applicable when the Izard County Circuit Court lodged detainers against him while in the custody of federal authorities on bank robbery charges. In this respect, appellant points to the court's order dated March 29, 1984, directing him to be transferred from federal detention to Izard County for arraignment and trial settings. ¹ On April 3, 1984, the court's bench warrant was served on appellant who, sometime in April 1984, appeared before the Izard County Circuit Court. Appellant pled innocent to all charges and then moved that the charges be severed. ² The trial court granted appellant's severance motion and set July 16, 1984, as the first trial date. After his arraignment, appellant was returned to federal custody. He later was returned to Izard County for the July 16, 1984 trial and was convicted by a jury on one count of burglary and theft of property and given consecutive sentences of twenty years imprisonment on each crime. On September 7, 1984, appellant pled guilty to the remaining counts of burglary and theft of property.

In citing Article IV(c) and (e) of Ark.Code Ann. § 16-95-101 (1987), the appellant's argument is two-fold: (1) Once the state gained custody of appellant, the court was required, under subsection (e), to try the criminal charges pending against him prior to his being returned to the federal authorities, or dismiss all of the charges with prejudice; (2) alternatively, even though the July 16, 1984 trial was held within the 120-day requirement set out in subsection (c), the September 7, 1984 hearing and conviction judgment on the remaining charges were beyond the 120-day period and should, as a consequence, be set aside and the charges dismissed.

The state responds by first arguing that the IAD Act never came into play since no detainer, as that term is used under the Act, had ever been lodged against the appellant. Second, even if the Act applies, the state urges that the appellant was required to object to his retransfer to the federal authorities, in order to raise the issue that, pursuant to the speedy trial provisions of the Act, the state charges must be concluded prior to his return.

In addressing the parties' respective contentions, we first must disagree with the state's argument that a detainer was never filed in this cause so as to permit the appellant to invoke the provisions of the IAD Act. While the Act itself contains no definition of the word "detainer," the Supreme Court noted in United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), that the House and Senate Reports explained that "a detainer is a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction." In addition to the explanation given the term "detainer" in Mauro, we note Article IV(a) of the Act which provides as follows:

The appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with Article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated.... (Emphasis added.)

Here, the Izard County Circuit Court issued a clear directive providing that the sheriff make arrangements for the transfer of the appellant to state custody so proceedings could go forward on the state charges pending against him. That order further provided for appellant's return to federal custody after the state proceedings. We have no hesitation in characterizing the Izard court's order a detainer, as that term is used and understood under the Act.

Although we agree with the appellant that a detainer was lodged against him which would have invoked the speedy trial provisions under the IAD Act, we cannot agree that the state's actions, contravening the Act's provisions, require a dismissal of his charges. As we noted earlier, the appellant urges that the state violated Article IV(e) of the Act by returning him to the federal authorities sometime in April 1984, without fully trying him on any of the charges pending against him. ³ However, even assuming the state's action was contrary to Article IV(e), such a violation is a non-jurisdictional error and is therefore waivable by a criminal defendant. Camp v. United States, 587 F.2d 397 (8th Cir.1978). In rendering such a holding in Camp, the 8th Circuit Court of Appeals held that the violation of Article IV(e) did not deny the court jurisdiction to entertain a guilty plea when the defendant failed to raise the issue in a timely manner. See also United States v. Palmer, 574 F.2d 164, 167 (3d Cir.), cert. denied, 437 U.S. 907, 98 S.Ct. 3097, 57 L.Ed.2d 1138 (1978), and United States v. Ford, 550 F.2d 732, 742 (2d Cir.1977), aff'd sub nom. United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978) ("The provision [Art. IV(e) ], ... which is intended to avoid the disruption in a prisoner's rehabilitation occasioned by repeated transfers between jurisdictions, is thus for his benefit and is waivable"). In the instant case, appellant neither requested a speedy trial, nor mentioned the IAD Act.

This brings us to appellant's final argument, viz., that he was burdened with ineffective assistance of counsel. On this point, appellant argues that, if his counsel had raised the speedy trial provisions of the IAD Act after having been transferred to the federal authorities and prior to appellant's trial and convictions, the state's charges against him would have been dismissed with prejudice. We reject appellant's contention for a number of reasons.

First, this court has routinely held that Rule 37 is not available as a direct challenge to the admissibility of evidence or to raise questions of trial error. Questions of constitutional dimension must even be raised in the trial court in accordance with the controlling rules of procedure, or else the issues are waived, unless they are so fundamental as to void the judgment absolutely. Howard v. State, 291 Ark. 633, 727 S.W.2d 830 (1987).

Second, we again look to the Camp decision wherein the defendant maintained that he could not be said to have waived a right of which he was not aware. In response, the Camp court relied on Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), setting forth the following excerpt from that case:

Almost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial.

The court in Camp followed the foregoing by stating that the IAD Act amounts to nothing more than a statutory set of procedural rules which clearly does not raise it to the level of constitutionally guaranteed rights. The court explained further that the sanctions in Article IV(e) of the IAD Act have nothing to do with preserving a fair trial, but are instead intended only to prevent excessive interference with a prisoner's rehabilitation in the state prison system. Id.; Camp, 587 F.2d at 400. We agree with the rationale and holding in Camp, and, accordingly, conclude that the failure of appellant's counsel to raise the IAD Act below did not involve the waiver of such a fundamental right that would void a judgment.

Other reasons exist as to why appellant cannot prevail on his claim of ineffective assistance of counsel. We have held that counsel is presumed competent, and the burden of overcoming that presumption rests on the petitioner. Franklin v. State, 293 Ark. 225, 736 S.W.2d 16 (1987). We have also held that a petitioner having entered a guilty plea normally will have difficulty in proving any prejudice since his plea rests upon his admission in open court that he did the act with which he is charged. Id. Additionally, to prove ineffective assistance of counsel under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a petitioner must show that (1) counsel's performance was deficient in that counsel made an error so serious that he was not functioning as the "counsel" guaranteed by the sixth amendment to the Constitution; and (2) the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose outcome can be relied on as just.

In view of the foregoing standards of review, we first point out that appellant's conviction...