Gould v. State

• Decision Date: 25 September 2019
• Docket Number: No. CR-18-673,CR-18-673
• Parties: Cortez Lamont GOULD, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Court of Appeals

2019 Ark. App. 418

585 S.W.3d 182

Cortez Lamont GOULD, Appellant

v.STATE of Arkansas, Appellee

No. CR-18-673

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered: September 25, 2019

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.

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), 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 was not file-marked by the circuit clerk until May 25, 2016.

Arkansas 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.²

We 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 21, 2016.

In this 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.

Gould 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.

Both of these witnesses testified at Gould's jury trial.

Judy McCarthy testified that the man who robbed the store was wearing a cap that "was pulled down farther than most hats are." However, McCarthy stated that she could see his face when he "point blank looked at me" and said, "give me all your money." McCarthy identified Gould at trial, stating that she was "absolutely certain" he was the perpetrator.

McCarthy was shown photo lineups on September 10 and 12, 2012. She did not identify anyone from the photo lineup on September 10. However, McCarthy identified Gould as the robber when she was shown the photo lineup on September 12. Gould's photo was #3 in the lineup. A recording of this photo-lineup interview was played to the jury. During the police interview, McCarthy first stated that she thought photo #3 was the person, and then she stated, "I want to say #4" but was not sure. Then McCarthy viewed photos #3 and #4 together, tried to picture the words "give me all your money" that were said to her by the robber, and selected #3, stating "that is the person." McCarthy signed a police form confirming her identification of Gould as the robber. During cross-examination at trial, McCarthy testified that "when I signed my name on that piece of paper I was 100% certain," that "I would never have written my name down if I wasn't 100% certain," and that "I didn't get it wrong." McCarthy was shown another photo lineup more than two years after that, and McCarthy did not select anyone from that lineup.

Lori Chambliss testified that the man who robbed the store walked "hunched over" wearing a hat pulled down low. The man came to the counter, poked Chambliss with a long cane-like stick, pointed a gun at McCarthy, and demanded that the ladies "give him all the money." According to Chambliss, McCarthy put the money in a trash bag and gave it to the perpetrator, and he told them to go to the back of the store and lie on the floor. The robber then demanded more money, which McCarthy gave him from her purse. He then exited the store with the money.

Chambliss testified that she was twice shown photo lineups in the days following the robbery. She could not positively identify the robber from either lineup, although when shown the second lineup she chose #3 and #5 and could not decide between the two. Chambliss was shown another photo lineup more than two years later and did not identify anyone from that lineup. At trial, Chambliss identified Gould as the robber, stating that his face was not covered the entire time during the robbery and that "I am 100% positive it was him." The jury convicted Gould based on the evidence presented, and we affirmed his conviction on direct appeal.

In Gould's petition and amended petition for postconviction relief under Rule 37, he raised a myriad of claims of alleged insufficiency of his trial counsel, all of which were denied by the trial court in its April 19, 2018 order denying relief. In this appeal, Gould argues that the trial court clearly erred in not finding Gould's trial counsel deficient in the following four respects: (1) trial counsel failed to file a motion to suppress McCarthy's photo-lineup identification; (2) trial counsel failed to file a written motion in limine challenging Chambliss's in-court identification; (3) trial counsel failed to call Georgia Brodie and Lindsey Paxton as defense witnesses; and (4) trial counsel failed to spend adequate time with Gould in preparation for trial.

We do not reverse the denial of postconviction relief unless the trial court's findings are clearly erroneous. Conley v. State , 2014 Ark. 172, 433 S.W.3d 234. A finding is clearly erroneous when, although there is evidence to support it, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed. Id. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Id.

Our standard of review also requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Conley, supra. In asserting ineffective assistance of counsel under Strickland the petitioner must first demonstrate that counsel's performance was deficient. Sartin v. State , 2012 Ark. 155, 400 S.W.3d 694. This requires a showing that counsel made errors...