Rowbottom v. State, 98-005

• Citation: 13 S.W.3d 904
• Decision Date: 13 April 2000
• Docket Number: 98-005
• Parties: Bruce Lee ROWBOTTOM v. STATE of Arkansas CR 98-005 ___ S.W.3d ___ Opinion delivered
• Court: Arkansas Supreme Court

Bruce Lee ROWBOTTOM v STATE of Arkansas

CR 98-005 ___ S.W.3d ___

Opinion delivered April 13, 2000

Supreme Court of Arkansas

Appeal from Benton Circuit Court; David S. Clinger, Judge; affirmed.

1. Criminal procedure -- Ark. R. Crim. P. 37 -- amendment of petition & expanded page limits. -- The Arkansas Rules of Criminal Procedure allow for the amendment of Rule 37 petitions but only with leave of the court; limiting Rule 37 petitions to ten pages in length is an entirely reasonable restriction on petitioners for post-conviction relief and does not violate their due process rights.

2. Criminal procedure -- request to enlarge petition properly denied. -- Where the trial court found that appellant failed to set forth any legitimate ground or justification for filing the enlarged petition, and on appeal, appellant failed to present any cogent reason for why the trial court's finding was clearly erroneous, the trial court was affirmed.

3. Criminal procedure -- Rule 37 petition -- when evidentiary hearing required. -- A court is not required to conduct an evidentiary hearing on a Rule 37 petition if it can conclusively determine from the record that the petitioner's contentions are meritless.

4. Criminal law -- points raised in petition barred from consideration -- no evidentiary hearing required. -- Where virtually all of the points raised in appellant's Rule 37 petition were barred from consideration for failure to raise them before the trial court at the original trial, the trial court did not err in failing to conduct an evidentiary hearing.

5. Appeal & error -- errors must be raised before trial court & on direct appeal --exception. -- Errors, including constitutional errors, must generally be raised before the trial court and on direct appeal; however, there is an exception for errors that are so fundamental as to render the judgment of conviction void and subject to collateral attack.

6. Criminal procedure -- double-jeopardy protection -- fundamental right that can be raised for first time in Rule 37 petition. -- Double-jeopardy protection is a fundamental right; therefore, appellant could raise his double-jeopardy claim for the first time in his Rule 37 petition.

7. Constitutional law -- Double Jeopardy Clause -- legislature determines crimes & fixes punishments. -- It is the legislature that determines crimes, fixes punishments, and has the authority to impose cumulative punishments for the same conduct; the United States Supreme Court has stated that legislatures are free under the Double Jeopardy Clause to define crimes and fix punishments, but that courts may not impose more than one punishment for the same offense; because the substantive power to prescribe crimes and determine punishments is vested with the legislature, the question under the Double Jeopardy Clause whether punishments are multiple is essentially one of legislative intent.

8. Constitutional law -- Double Jeopardy Clause -- does not preclude imposition of cumulative punishments under two statutes that may be construed to proscribe same conduct. -- Simply because two criminal statutes may be construed to proscribe the same conduct does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes; where a legislature specifically authorizes cumulative punishment under two statues, regardless of whether those two statues proscribe the "same" conduct, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishments under such statutes in a single trial.

9. Criminal procedure -- legislature's intent to assess additional penalty for violation of two statutes clear -- no double-jeopardy violation. -- Where the proscription against simultaneous possession of drugs and firearms [Ark. Code Ann. § 5-74-106(Repl. 1997)] was enacted to deter and punish ongoing organized criminal activity and to provide for penalties to punish and deter organized ongoing criminal activity, and section 5-74-106 specifically referred to committing a violation of § 5-64-401 (Supp. 1999)[possession with intent to deliver a controlled substance], while possessing a firearm, the General Assembly made it clear that it wished to assess an additional penalty for simultaneously possessing controlled substances and a firearm; there was no double-jeopardy violation.

10. Appeal & error -- issues not raised at trial or on direct appeal -- issues waived. -- The issues raised by appellant were waived due to his failure to raise them either at trial or on direct appeal.

Appellant, pro se.

Winston Bryant, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.

Robert L. Brown, Justice.

The appellant, Bruce Lee Rowbottom, appeals pro se from denial of his petition for post-conviction relief under Ark. R. Crim. P. 37. He raises multiple issues in support of his petition for a new trial, but none of them has merit. We affirm the order of the trial court.

In 1996, Rowbottom was tried with standby counsel on one count of possession of methamphetamine with intent to deliver, one count of possession of marijuana with intent to deliver, one count of possession of drug paraphernalia, one count of felon-in-possession-of-a-firearm, and one count of simultaneous possession of a controlled substance and firearm. He was convicted on all counts and sentenced to a concurrent term of forty-five years in prison. We affirmed the convictions and the sentence. Rowbottom v. State, 327 Ark. 76, 938 S.W.2d 224 (1997). On April 2, 1977, Rowbottom filed the Rule 37 petition which is the subject of this appeal. On the same day, he moved for leave to file an amended and enlarged Rule 37 petition. The trial court denied his motion, and on December 4, 1997, the trial court entered its order denying the petition in toto without first conducting a hearing.

Rowbottom first contends in this appeal that the trial court erred in denying him leave to file an amended Rule 37 petition in excess of the ten page limit provided in Ark. R. Crim. P. 37.1(e). He further claims that without fifteen additional pages raising five new issues, as he requested, his constitutional rights were violated. We disagree. Our Rules of Criminal Procedure do allow for the amendment of Rule 37 petitions, but only with leave of the court. Ark. R. Crim. P. 37.2(e). And with regard to expanded page limits, this court has held that limiting Rule 37 petitions to ten pages in length is an entirely reasonable restriction on petitioners for post-conviction relief and does not violate their due process rights. See Washington v. State , 308 Ark. 322, 823 S.W.2d 900 (1992). In the instant case, the trial court found that Rowbottom failed to set forth any legitimate ground or justification for filing the enlarged petition. Similarly, on appeal, he fails to present us with any cogent reason for why the trial court's finding was clearly erroneous. We affirm the trial court on this point.

On a second procedural point, Rowbottom contends that he was entitled to a hearing before the trial court on his Rule 37 petition and that it was error for the trial court to deny him a hearing. Again, we disagree. Our rules provide on this point:

If the petition and files and record of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any part of the files, or records that are relied upon to sustain the court's findings.

Ark. R. Crim. P. 37.3(a).

In reliance on this rule, this court has held that a court is not required to conduct an evidentiary hearing if it can conclusively determine from the record that the petitioner's contentions are meritless. Stewart v. State , 295 Ark. 48, 746 S.W.2d 58 (1988); see also Brown v. State, 291 Ark. 143, 722 S.W.2d 845 (1987) (trial court must look at entire record when denying a petition without a hearing). Here, as will be shown subsequently in this opinion, virtually all of the points raised in the Rule 37 petition are barred from our consideration for failure to raise them before the trial court at the original trial. Hence, the trial court did not err in failing to conduct an evidentiary hearing.

There is one issue, however, that Rowbottom contends is a fundamental claim which he was not required to raise at the original trial in order to preserve it. That is his double-jeopardy claim. Rowbottom is correct on this point. In Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988), this court held that it was not appropriate to raise trial errors, including constitutional errors, for the first time in a Rule 37 proceeding. At the same time, we acknowledged in Finley that issues that are "so fundamental as to void the judgment absolutely," will not be waived by failure to raise them at trial. 295 Ark. at 363, 748 S.W.2d at 647, citing Howard v. State , 291 Ark. 633, 727 S.W.2d 830 (1987).

Two of our later cases touched on this issue. In Jeffers v. State , 301 Ark. 590, 591, 786 S.W.2d 114 (1990), this court explained:

A ground sufficient to void a judgment of conviction must be one so basic that it renders the judgment a complete nullity, for example, a judgment obtained in a court lacking jurisdiction to try the accused, or a conviction obtained in violation of an accused's rights against double jeopardy. (Emphasis ours.)

Additionally, in Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996), the issue involved in the Rule 37 petition was denial of a trial by a jury of twelve members. In Collins, we noted that we had made an exception to our general rule that errors, including constitutional errors, must be raised before the trial court and on direct appeal. That exception is for errors that are so fundamental as to render the judgment of conviction void and subject to collateral attack. Citing Finley v. State, supra; Hulsey v. State, 268 Ark. 312, 595...