Pitts v. State

• Decision Date: 12 May 2021
• Docket Number: No. CR-20-308,CR-20-308
• Citation: 624 S.W.3d 700,2021 Ark. App. 242
• Court: Arkansas Court of Appeals
• Parties: Benjamin Mickey PITTS, Appellant v. STATE of Arkansas, Appellee

2021 Ark. App. 242

624 S.W.3d 700

Benjamin Mickey PITTS, Appellant

v.STATE of Arkansas, Appellee

No. CR-20-308

Court of Appeals of Arkansas, DIVISIONS II & III.

Opinion Delivered: May 12, 2021

Benjamin Pitts, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Vada Berger, Senior Ass't Att'y Gen., and Michael Zangari, Ass't Att'y Gen., for appellee.

BART F. VIRDEN, Judge

Benjamin Pitts appealed the circuit court's denial of his Rule 37 petition, and on February 24, 2021, we affirmed the circuit court's decision in Pitts v. State , 2021 Ark. App. 81, 2021 WL 713959. The State has since filed a petition for rehearing, and we grant the State's petition and issue the following substituted opinion.

A Garland County jury convicted Pitts of second-degree murder, two counts of first-degree battery, possession of a firearm by certain persons, and aggravated residential burglary. Pitts was sentenced to an aggregate term of eighty years in the Arkansas Department of Correction. On direct appeal, Pitts raised two points. He argued that the circuit court erred in denying his motion to dismiss for violation of his right to a speedy trial and in denying his motion to suppress custodial statements made to his parole officer. We affirmed his conviction in Pitts v. State , 2019 Ark. App. 107, 571 S.W.3d 64, and denied Pitts's petition for rehearing. The mandate issued on April 2, 2019.

On April 22, Pitts filed a pro se verified petition for Rule 37 relief, which the circuit court found did not conform to the Rule 37.1(b) margin requirements and dismissed it without prejudice to allow Pitts to file a conforming petition. On May 28, Pitts filed a second petition, which, on July 23, also was dismissed without prejudice "to filing a petition that conforms to Rule 37.1(b)." On August 19, with leave of the court, Pitts filed a third amended petition containing the same margin-requirement violation, and the court found that "the Petition Defendant filed August 19, 2019, is dismissed without prejudice to filing a petition that conforms to Rule 37.1(b)." On September 19, 2019, Pitts filed his fourth amended petition, and on February 7, 2020, the circuit court denied Pitts's petition. The circuit court found that Pitts supplemented his petition with new evidence without first requesting leave of the court to do so in violation of Rule 37, and it addressed and denied each of Pitts's ineffective-assistance-of-counsel claims.¹ Pitts timely filed his notice of appeal.

Before we reach the merits of Pitts's appeal, we address the State's original argument that the case should be dismissed for lack of jurisdiction, our rejection of that argument, and the State's petition for rehearing regarding the matter of jurisdiction.

Originally, the State contended that the circuit court lacked jurisdiction over Pitts's petition because the September 19 petition was not filed within sixty days of the date that the court of appeals issued the mandate. We rejected the State's argument for dismissal, which erroneously relied in part on Rule 37(e). Subsection (e) provides that before the court acts upon a petition filed under Rule 37, the petition may be amended with leave of the court. Ark. R. Crim. P. 37.2(e). Subsection (e) is not jurisdictional, and its purpose is to prevent a petitioner from filing multiple petitions before the court has had a chance to rule on the first petition—unless the court exercises its discretion to allow such amendments before it has ruled on the first petition. Pitts did not file subsequent or amended petitions before the court ruled on his first petition, and the court was not required to exercise its discretion pursuant to subsection(e); thus, subsection (e) does not apply here.²

In response to our opinion, the State filed a petition for rehearing, this time arguing that the court did not give leave for Pitts to file the subsequent petitions and that "there are no rulings in the record granting him leave to file amended petitions." That is incorrect. As stated above, the court found that "the Petition Defendant filed August 19, 2019, is dismissed without prejudice to filing a petition that conforms to Rule 37.1 (b)." In its denial of Pitts's final petition filed on September 19, the circuit court found that "Petitioner was allowed to file three previous Rule 37 petitions which did not conform to Arkansas law and the Court dismissed those petitions without prejudice and allowed the current 4th petition." Accordingly, we reject the State's contention that the court did not give leave for Pitts to file subsequent petitions.

Next, the State avers that Pitts's fourth petition did not "relate back" to a pending, timely filed, and conforming petition because the court had dismissed the previous petitions; thus, the State argues, the fourth petition was filed outside the sixty-day requirement. Specifically, the State contends that

[t]he fact that Pitts previously had filed two timely petitions before he filed his final petition in September 2019, did not render the latter petition timely. The two petitions that he filed before June 3, 2019, were dismissed in July, 2019, due to their lack of compliance with the margin requirements of Rule 37.1(b). As a result, those petitions had been acted on and were no longer pending at the time that Pitts filed his fourth and final petition in September, 2019. And, because those timely filed petitions were not pending in September, 2019, the fourth petition filed then could not relate back to them. See, e.g. , Rhuland v. Fahr , 356 Ark. 382, 390–91, 155 S.W.3d 2, 8 (2004) (explaining that there must be existing pleadings to amend before relation back can occur); see also, e.g. , Arkansas Rule of Criminal Procedure 37.2(e) (2019) (authorizing amendment of a petition with leave of court "[b]efore the court acts upon" it) (emphasis added).

As discussed above, subsection (e) has no bearing on this case. We also reject the State's argument that the last petition—filed with leave of the court--must relate back to a pending petition. Under these facts, there is no requirement that the subsequent petitions must relate back to a pending petition, and we decline to rely on Rhuland v. Fahr , 356 Ark. 382, 390–91, 155 S.W.3d 2, 8 (2004), a probate case, in determining this Rule 37 issue. Here, jurisdiction was acquired with the timely filing of the original verified petition that complied with the jurisdictional aspects of Rule 37, and the circuit court did not lose jurisdiction, because it is within the court's discretion to continue to give leave for Pitts to file a conforming petition for as long as it sees fit. If an appeal was taken of the judgment of conviction, a petition claiming relief under Rule 37 must be filed in the circuit court within sixty days of the date the mandate is issued by the appellate court. Ark. R. Crim. P. 37.2(c)(ii). Time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and if they are not met, the circuit court lacks jurisdiction to grant postconviction relief. Wright v. State , 2011 Ark. 356, 2011 WL 4092214. Here, Pitts met the time limitations imposed in Rule 37.2(c) by timely filing his first petition, and the court gave Pitts leave to file each subsequent petition. We reject both the State's original argument in its brief and the arguments it raises in its petition for rehearing.

We proceed to the merits and affirm.

When reviewing a circuit court's ruling on a petitioner's request for Rule 37.5 relief, this court will not reverse the circuit court's decision granting or denying postconviction relief unless it is clearly erroneous. Kemp v. State , 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been made. Id. , 60 S.W.3d at 406.

When considering an appeal from a circuit court's denial of postconviction relief on a claim of ineffective assistance of counsel, the sole question presented is whether, considering the totality of the evidence under the 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), the circuit court clearly erred in holding that counsel's performance was not ineffective. Sparkman v. State , 373 Ark. 45, 281 S.W.3d 277 (2008). In making this determination, we must consider the totality of the evidence. Howard v. State , 367 Ark. 18, 238 S.W.3d 24 (2006).

The benchmark for judging a claim of ineffective assistance of counsel must be "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland , 466 U.S. at 686, 104 S.Ct. 2052. Pursuant to Strickland , we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Williams v. State , 369 Ark. 104, 251 S.W.3d 290 (2007). A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness.

Springs v. State , 2012 Ark. 87, 387 S.W.3d 143. A court must indulge in a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. , 387 S.W.3d 143.

Second, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Id. , 387 S.W.3d 143. The petitioner must show there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Howa...