Dansby v. StateDansby v. State
Lead Opinion
This is аn appeal by appellant Ray Dansby from the denial of his petition for postconviction relief undеr Ark. R. Crim. P. 37.5 in connection with his capital murder convictions and death sentences. Dansby raises multiple issues in his Rule 37.5 appeal, including (1) trial counsel was ineffective in pretrial preparation; (2) trial counsel was ineffective in conducting voir dire of the jury panel; (3) trial counsel was ineffective in failing to secure the presence of a witness, Calvin Paschal; (4) trial counsel was ineffective in falling to move to suppress Dansby’s statement given to law enforcement; and (5) trial counsel was ineffective in preparing mitigation evidence for the penalty phase of the trial. Counsel for Dansby in this Rule 37.5 appeal has failed to abstract the testimony and rulings frоm the underlying trial which give rise to his claims of ineffective assistance of counsel. Therefore, we order counsel to refile his brief within thirty days in compliance with Ark. Sup. Ct. R. 4-2(a)(5).
Just last year, this court advised appellant’s counsel in a Rule 37.5 death case to correct a flagrantly deficient abstract. See McGehee v. State,
A proper abstract, which includes material portions of the underlying trial, is essential to this court’s review of Rule 37.5 decisions. Without it, we are unable to perform a comprehensive review of Dansby’s сlaim for postconviction relief. When this court adopted Rule 37.5 in 1997, we noted that we were doing so in response to Act 925 of 1997 and the federal Antiterrorism and Effective Death Penalty Act of 1996. Later, we noted the purpose behind Rule 37.5:
Rule 37.5 evolved from Act 925 of 1997, now codified at Ark. Code Ann. §§ 16-91-201 to -206 (Supp. 1999), where the General Assembly expressly noted that the intent of the Act is to comply with federal law by instituting a comprehensive state-court review. See section 16-91-204; Porter v. State,332 Ark. 186 ,964 S.W.2d 184 (1998) (per curiam). The purpose of a meaningful state review is to eliminate the need for multiple federal habeas corpus proceedings in death cases. Id. Thus, “in death cases where a Rule 37 petition is denied on procedural grounds, great care should be exercised to assure thаt the denial rests on solid footing.” Id. at 188-89,964 S.W2d at 185 .
Echols v. State,
The State suggests that this court should go to the record of the underlying trial and read those portions of the trial that pertain to Dansby’s claims on appeal. In other words, the State suggests that this court should do appellate counsel’s work and engage in the cumbersome process of passing a record back and forth among seven judges in an attempt to find the relevant portions of the recоrd. We decline to do that. Proper abstracting of the record was the obligation of Dansby’s attorney.
Dansby’s сounsel, accordingly, is given thirty days to revise the abstract and submit to this court a substitute brief so that we can engagе in a meaningful review of his issues on appeal. The argument section of the brief should remain the same as thаt currendy included in the brief before this court. Because the argument portion of the appellant’s brief will bе unchanged, a response by the State should be unnecessary, unless the State objects in some way to the сompilation of the revised abstract.
Rebriefing ordered.
Notes
By per curiam order, previous Supreme Court Rule 4-2(a)(6) became Rule 4-2(a)(5). See In Re: Modification of the Abstracting System - Amendments to Supreme Court Rules 2-3, 4-2, 4-3, and 4-4, 345 Ark, Appx. (May 31, 2001).
Dissenting Opinion
dissenting. I agree with the court that, in death cases where a Rule 37 petition is denied on procedural grounds, great care should be exercised to assume that the denial rests on solid footing. Here, that assurance exists without rebriefing, bеcause this case can be decided on its merits, not on procedural grounds.
While the appellant here failed to abstract the record, the State has gone to the transcript to argue and discuss the merits of appellant’s points. Our court has held repeatedly that it may go to the record to affirm, see McGеhee v. State,
For the above reasons, I would proceed to consider this apрeal on its merits rather than waste time making the appellant abstract a record which in no way is going to help his case, but will serve only to increase attorney’s fees and costs and will end in an unnecessary delay of this court’s decision.