[i Edward Lee Carter was found guilty by a jury of aggravated robbery in violation of Arkansas Code Annotated § 5-12-102(a) (Repl.2006), and he was sentenced to 360 months’ imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed, and its mandate was issued on November 10, 2009. Carter v. State,
Before we address appellant’s motions, however, we must determine whether a petition for postconviction relief is timely when it is filed on the same day that the court of appeals issues its mandate, inasmuch as a circuit court lacks jurisdiction to rule on a petition filed before the mandate is issued. See Doyle v. State,
Where a direct appeal is taken following a conviction, “a petition claiming relief under this rule must be filed in the circuit court within sixty (60) days of the date the mandate was issued by the appellate court.” Ark. R.Crim. P. 37.2(c) (2009); see Tillman v. State,
The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. See State v. Britt,
This court has held that a mandate is effective as of its date of issuance. See, e.g., Barclay v. Farm Credit Servs.,
We turn, then, to appellant’s motions for photocopying at public expense and for access to the record. Specifically, appellant, who claims he is indigent, seeks a copy of the brief-in-chief that his attorney filed in appellant’s direct appeal, a copy of the opinion issued by the court of appeals, and a copy of the record so that he may complete his brief-in-chief, and he requests that all copies be provided at public expense.
While we have consistently held that indigency alone does not entitle a petitioner to photocopying at public expense, see, e.g., Gardner v. State,
In an appeal from a trial court’s denial of postconviction relief on a claim of ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the U.S. Supreme Court in Strickland v. Washington,
Appellant raised four grounds for relief in his original Rule 37.1 petition, arguing that trial counsel was ineffective for failing to investigate the security system or speak to a store representative concerning the alleged theft at the Wal-Mart where the crime occurred, for failing to interview or call witnesses whose testimony could have impeached the testimony of the State’s two witnesses, for failing to obtain and submit a surveillance video from the aforementioned Wal-Mart, and for failing to challenge the jury-selection process as not presenting a fair cross-section of the community. All four arguments are unavailing inasmuch as appellant did not demonstrate the requisite prejudice under Strickland.
Appellant’s first two claims can be summarized as arguing that, had trial counsel ^performed the allegedly omitted actions, the State could not have established that appellant was guilty of theft, and appellant would therefore also not be guilty of robbery. As was explained in the opinion on direct appeal, however, this is an incorrect statement of the law concerning aggravated robbery. In rejecting appellant’s suffieiency-of-the-evidence argument, the court of appeals explained that a defendant can be convicted of robbery even if no property is actually taken because the emphasis is on the express or implied threat of physical harm to the victim. Carter,
Because the State was not required to prove that the alleged theft had actually been accomplished, appellant’s arguments that trial counsel was ineffective for failing to investigate the security system at Wal-Mart, for failing to talk to a Wal-Mart representative regarding the theft, and for failing to interview other alleged unnamed witnesses regarding the theft cannot provide a basis for relief. Appellant has failed to establish a reasonable probability that, had counsel performed those acts, the outcome of appellant’s trial (i.e., his conviction for | aggravated robbery) would have been different.
Appellant’s third argument was that trial counsel was ineffective for failing to obtain a surveillance video from Wal-Mart that would have shown appellant in the parking lot and would have shown that he did not pull a gun. In the order dismissing appellant’s Rule 37.1 petition, the trial court found that part of appellant’s defense strategy was to point to the lack of any video evidence that he had a firearm. Where a decision by counsel was a matter of trial tactics or strategy, and that decision is supported by reasonable professional judgment, then such a decision is not a proper basis for relief under Rule 37.1. Smith v. State,
Here, appellant does not demonstrate that a decision to rely on the lack of positive video evidence as part of the defense to the aggravated robbery charge could not have been the result of reasonable professional judgment on the part of trial counsel. To the extent that his argument focuses on possible videotape evidence regarding whether he pulled a firearm, we note that there is an important difference between an absence of proof and actual proof |sof absence.
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Even if it appeared in a surveillance video that appellant did not have a gun, the testimony of both witnesses was that appellant did in fact display one. Thus, the issue was one of witness credibility, and it would have been for the jury to resolve the conflict. The trier of fact is free to believe all or part of any witness’s testimony and may resolve all questions of conflicting testimony and inconsistent evidence. Rounsaville v. State,
Judicial review of counsel’s performance must be highly deferential, and a fair assessment of counsel’s performance under Strickland requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct from counsel’s perspective at the time. Johnson,
Finally, appellant argues that trial counsel was ineffective for failing to challenge the jury-selection process as not presenting a fair cross-section of the community. A fair-cross-section claim asserts that a distinctive group in the community was systematically excluded from the jury pool. Miller v. State,
Based on all of the foregoing, it is clear to this court that appellant could not prevail on his appeal. We therefore dismiss the appeal, and appellant’s pending motions are accordingly moot.
Appeal dismissed; motions moot.
Notes
. Appellant then filed an amended Rule 37.1 petition on November 30, 2009; however appellant did not seek leave of the court to file an amended petition as required by Arkansas Rule of Criminal Procedure 37.2(e) (2010), and the trial court’s order does not reflect that the amended petition was ever considered. We therefore only consider the initial Rule 37.1 petition in determining whether appellant pleaded grounds sufficient to support relief under Rule 37.1.
. To the extent appellant’s argument focuses on possible videotape evidence as it relates to the theft, he cannot show prejudice for the reasons already discussed.