Shreck v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: ROBERT J. GLADWIN, Judge
• Citation: Shreck v. State, 2019 Ark. App. 85, 572 S.W.3d 35 (Ark. App. 2019)
• Decision Date: 13 February 2019
• Docket Number: No. CR-18-600,CR-18-600
• Parties: Richard SHRECK, Appellant v. STATE of Arkansas, Appellee

2019 Ark. App. 85

572 S.W.3d 35

Richard SHRECK, Appellant

v.STATE of Arkansas, Appellee

No. CR-18-600

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered: February 13, 2019

Craig Lambert, Little Rock, for appellant.

Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't Att'y Gen., for appellee.

ROBERT J. GLADWIN, Judge

Appellant Richard Shreck, whose conviction by a Faulkner County Circuit Court jury of two counts of conspiracy to commit rape was affirmed on appeal, see Shreck v. State , 2017 Ark. 39, 510 S.W.3d 750¹ , filed a petition for postconviction relief. The Faulkner County Circuit Court denied the petition and motion for reconsideration. Shreck appeals, arguing that the circuit court erred in denying his petition under Arkansas Rule of Criminal Procedure 37.1 (2018) without holding an evidentiary hearing and for failing to make findings of fact and conclusions of law as required by Rule 37.3. We agree; therefore, we reverse and remand for the circuit court to either hold a hearing or issue written findings in compliance with Rule 37.3(a).

I. Facts and Procedural Background

As set forth in the final underlying appeal before our supreme court, the relevant facts and procedural background are as follows:

The appellant entered an online chatroom and began to chat with a police officer trained to investigate crimes against children. The chatroom, which they were both in, typically includes people who chat about sexually deviant behavior, including sexually exploiting children. The online profile of the officer was that of a single mother of a ten-year-old daughter and an eight-year-old son whom she was willing to make available for the sexual gratification of the chatroom participants. The conversation between appellant and the officer involved sexual acts with the officer's imaginary children. Appellant ultimately made arrangements to meet the officer and her imaginary children at a parking lot in Conway and take them to Hot Springs for sex. Upon meeting the officer, the appellant was placed in custody.

During the online conversations, appellant admitted that he was interested in "snuff" and bondage sex. He also stated that he had thought about snuffing a child. Further, during one of the conversations, appellant sent a picture of a device he made for snuffing women. He also asked for pictures of the officer's imaginary children and stated that he was talking about snuff sex with others, including a sixteen-year-old girl. Testimony at circuit court described snuff sex as killing someone during or after sex and indicating that it may be done by impaling someone with a sharpened rod.

Appellant was ultimately charged with two counts of conspiracy to commit rape and two counts of attempted internet stalking of a child. The internet-stalking charges were nolle prossed by the State. A jury subsequently convicted the appellant of two counts of conspiracy to commit rape and sentenced him to 30 years in prison on each count.

During the sentencing phase, the officer testified regarding the conversations centered on "snuff" and bondage sex. Additionally, the State entered into evidence pictures that depicted women being impaled during sex, which were found on the defendant's computer, as well as the picture of the device the defendant made for impaling women.

Shreck , 2017 Ark. 39, at 1–2, 510 S.W.3d at 751.

Shreck then filed a timely petition for post-conviction relief in the circuit court. In that petition, he alleged that trial counsel was ineffective in a number of respects. In a three-paragraph order, the circuit court denied Shreck's Rule 37 petition on March 26, 2018:

Comes now for consideration of the issues presented by the Petitioner in his Rule 37 Petition. Based on the said motion and the State's response, the Court makes the following findings of fact and conclusions of law:

A petition for relief pursuant to Rule 37 was filed by the Petitioner on April 20, 2017. A subsequent order was entered allowing an amendment to that petition to be filed on October 27, 2017. No amended petition was ever filed[,] and the State responded on December 21, 2017.

Having reviewed the petition and the response it is the Court's finding that the allegations raised by Mr. Shreck in his Rule 37 petition are conclusory and at this point would be [sic] require a hearing. Therefore, the petition for Rule 37 relief is hereby denied.

Shreck filed a motion on April 4, 2018, in which he requested reconsideration and the entry of adequate findings of fact and conclusions of law. The circuit court denied that motion in a three-sentence order filed on April 10, 2018:

On this day comes on to be heard the Defendant's Motion for Reconsideration. IT IS HEREBY ORDERED that the Defendant's Motion for Reconsideration should be and is hereby denied.

IT IS SO ORDERED.

Shreck filed a timely notice of appeal on April 17, 2018.

II. Standard of Review

We do not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous. King v. State , 2018 Ark. App. 605, at 3, ––– S.W.3d ––––, ––––. A finding is clearly erroneous when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that the circuit court made a mistake. Id.

III. Discussion

Shreck first asserts to this court that this entire case should be reversed and remanded because the court below erroneously failed or refused to render findings of fact and conclusions of law in compliance with Ark. R. Crim. P. 37.3 in its order denying relief. Rule 37.3(a) provides: "If the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the circuit court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court's findings." Rule 37.3(c) also provides in relevant part that "[w]hen a petition is filed in the circuit court and the court does not dispose of the petition under subsection (a) hereof, ... [t]he court shall determine the issues and make written findings of fact and conclusions of law with respect thereto."

Here, without holding an evidentiary hearing, the circuit court entered a one-page order denying relief that is not in compliance with Rule 37.3 or the supreme court's precedent interpreting that rule. The Arkansas Supreme Court has held that the provisions of Rule 37.3 requiring written findings are mandatory. See Collins v. State , 2018 Ark. 115, 542 S.W.3d 864 ; Douglas v. State , 2018 Ark. 89, 540 S.W.3d 685 ; Turner v. State , 2016 Ark. 96, 486 S.W.3d 757. When a circuit court concludes, without a hearing, that a petitioner is not entitled to postconviction relief from a criminal conviction, Rule 37.3(a) requires the circuit court to make written findings, specifying the parts of the record that form the basis of the circuit court's decision, and if the circuit court fails to make such findings, it is reversible error. Sanders v. State , 352 Ark. 16, 98 S.W.3d 35 (2003). The only exception is if the record on appeal conclusively shows that the petition is without merit. Id. In Wooten v. State , 338 Ark. 691, 1 S.W.3d 8 (1999), our supreme court held:

Where the trial court concludes, without a hearing, that the petitioner is not entitled to relief, Rule 37.3(a) requires the trial court to make written findings specifying the parts of the record that form the basis of the trial court's decision. If the trial court fails to make such findings, it is reversible error, unless the record before this court conclusively shows that the petition is without merit. In short, while this court has affirmed the denial of Rule 37 petitions notwithstanding the trial court's failure to make written findings as required by Rule 37.3(a), we have done so only where it can be determined from the record that the petition is wholly without merit or where the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted.

Id. at 694–95, 1 S.W.3d at 10 (citations omitted).

We hold that the circuit court committed reversible error because the record...