Pitts v. State

• Decision Date: 24 February 2021
• Docket Number: No. CR-20-308,CR-20-308
• Citation: 2021 Ark. App. 81
• Parties: BENJAMIN MICKEY PITTS APPELLANT v. STATE OF ARKANSAS APPELLEE
• Court: Arkansas Court of Appeals

2021 Ark. App. 81

BENJAMIN MICKEY PITTS APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-20-308

ARKANSAS COURT OF APPEALS DIVISION II

February 24, 2021

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT

[NO. 26CR-14-376]

HONORABLE MARCIA R. HEARNSBERGER, JUDGE

AFFIRMED

BART F. VIRDEN, Judge

Benjamin Pitts appeals the circuit court's denial of his Rule 37 petition. We affirm.

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 Rule 37.1 and dismissed it without prejudice to allow Pitts to file a conforming petition. Pitts refiled two more amended petitions, and both were dismissed without prejudice. 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 without leave of the court in violation of Rule 37 and addressed and denied each of Pitts's ineffective-assistance-of-counsel claims.

Pitts timely filed his notice of appeal.

As a preliminary matter the State urges our court to dismiss Pitts's appeal, arguing that we do not have jurisdiction. The State contends that the circuit court lost jurisdiction to hear Pitts's petition because he filed his fourth amended petition after the sixty-day deadline for filing for Rule 37 relief. We disagree.

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). Before the court acts upon a petition filed under this rule, the petition may be amended with leave of the court. Ark. R. Crim. P. 37.2(e). 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. However, in Barrow v. State, 2012 Ark. 197, the supreme court held that jurisdiction is conferred on the circuit court when the appellant files a timely, verifiedpetition, and after that, the circuit court has jurisdiction to allow the appellant to file an amended petition, pursuant to Ark. R. Crim. P. 37.2(e). In Barrow, as in the instant case, the appellant initially filed a verified petition within the sixty-day time limit. The court dismissed the petition without prejudice and ordered him to file a conforming petition within ten days. Barrow filed his amended petition seven days later, which was a few days after the sixty-day time limit. Our supreme court held that

jurisdiction was conferred on the circuit court when Barrow filed a timely, verified petition on December 2, 2010. See Ark. R. Crim. P. 37.2(c)(ii). It appears that the State is contending that the circuit court did not have jurisdiction of the matter because a petition in compliance with Rule 37.1(b) was not filed within sixty days of the date that the court of appeals had issued the mandate. Rule 37.1(b), however, is not jurisdictional in nature. Once jurisdiction was established by Barrow's timely filing of a verified petition on December 2, 2010, the circuit court had discretion to allow Barrow to file an amended petition. See Ark. R. Crim. P. 37.2(e).

Barrow, 2012 Ark. 197, at 5. The mandate for Pitts's direct appeal issued April 2, and the State concedes that he timely filed his first verified Rule 37 petition on April 22. With leave of the court, Pitts filed three more amended petitions; thus, pursuant to Barrow and Rule 37.2, the circuit court had jurisdiction to hear Pitts's Rule 37 petition. 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, theappellate 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 (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. 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 thatcounsel'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. Howard, 367 Ark. 18, 238 S.W.3d 24. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id., 238 S.W.3d 24. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id., 238 S.W.3d 24. "[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697. The circuit court has the discretion to deny postconviction relief without a hearing, and it need not hold an evidentiary hearing where it can be conclusively shown on the record, or on the face of the petition itself, that the allegations have no merit. Ark. R. Crim. P. 37.3(a).

Pitts asserts many instances of ineffective assistance of counsel; however, none presents grounds for reversal. First, Pitts contends that counsel was ineffective for failing to challenge the probable cause for his arrest. The circuit court correctly denied Pitts's assertion, finding that such a claim is not cognizable pursuant to Rule 37. Generally, a challenge to thevalidity of an arrest warrant for lack of probable cause is not cognizable in a Rule 37 petition. Moten v. State, 2013 Ark. 503, at 4. The allegation constitutes a direct attack on the judgment of conviction rather than a collateral challenge to the judgment and is not cognizable under Rule 37.1. Munnerlyn v. State, 2013 Ark. 339, at 2. "[S]ome flaw in the arrest procedure" does not vitiate an otherwise valid judgment and does not constitute fundamental error sufficient to void a judgment. Id. at 2-3.

Second, Pitts claims that the circuit court erred in denying his Rule 37 petition on the ground that counsel was ineffective for failing to preserve for review a challenge to the seizure and search of his cell phone, which led to the admission of incriminating evidence at his trial and his conviction. In its denial of Pitts's petition, the circuit court found that Pitts's cell phone was seized by his parole officer incident to arrest for parole violations. An officer making a lawful arrest may conduct a warrantless search of the accused and his property. Ark. R. Crim. P. 12.1(d) (2020). Thus, counsel is not ineffective for failing to preserve for appellate review a meritless argument. Wooten v. State, 2016 Ark. 376, at 6-7, 502 S.W.3d 503, 508 (per curiam).

Third, Pitts argues that counsel failed to challenge both independent bases for the circuit court's ruling that his incriminating statement to his parole officer was admissible. The circuit court found that Pitts's statement to his parole officer was spontaneous and not the result of interrogation. Also, the circuit court found that Pitts was aware of his Miranda rights when his parole officer asked him if he was an accessory to capital murder. On appeal,counsel argued that Pitts's statement was the result of an interrogation and was not spontaneous; however, counsel did not challenge the second independent basis for the circuit...