Lee v. StateLee v. State
PER CURIAM
In 2006, appellant Jimmy Ed Lee entered a plea of guilty to possession of drug paraphernalia with intent to manufacture a controllеd substance. He was placed on probation for a term of five years and fined $2900. In 2007, the State filed a petition to revoke probation, alleging appellant‘s failure to comply with the written conditions of probation. The petition was granted, and appellant wаs sentenced to a term of 240 months’ imprisonment and ordered to pay the original fine and costs. The Arkansas Court of Appeals affirmed the revocation order. Lee v. State, CACR 07-684 (Ark. App. Dec. 5, 2007) (unpublished).
On January 28, 2008, appellant filed in the trial court a petition for postconviction relief pursuant to
In his petition, appellant alleged error on the part of the trial cоurt and ineffective assistance of counsel in the original guilty plea proceeding. With respect to those claims, the Rule 37.1 petitiоn was not timely filed. Any allegation pursuant to the rule that appellant desired to raise was required to be raised in a petition filed within ninety dаys of the date that the original judgment was entered in 2006 in accordance with
Time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and a circuit court cannot grant relief on claims not timely raised in accordance with the rule. Lauderdale v. State, 2009 Ark. 624 (per curiam) (citing Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989)).
As to the assertions raised by appellant with regard to the revocation proceeding and the appeal from the revocation order, the claims were timely and could be addressed by the trial court. But, even though the claims were timely raised, the court could grant relief only on those allegations that concerned whether appellant was afforded effective assistance of counsel in the revocation proceeding аnd subsequent appeal. The claims of trial error, even those of constitutional dimension, should have been raised in the revocation proceeding and on appeal from the order. See Taylor v. State, 297 Ark. 627, 764 S.W.2d 447 (1989) (per curiam). Our postconviction rule does not permit a direct attack on a judgment or substitute
Appellant raised one allegation in his petition that, if proven, would render the judgment entered on revocation void. He argued that the sentenсe of 240 months’ imprisonment and the fine imposed when probation was revoked constituted a violation of the provisions against double jеopardy. A sentence in violation of double jeopardy is void. See Reed v. State, 375 Ark. 277, 289 S.W.3d 921 (2008); see also Hunes v. State, 2010 Ark. 70 (per curiam). Appellant‘s claim, however, was without merit.
A probation revocation, like a parole revoсation, is not a stage of a criminal prosecution; accordingly, a revocation proceeding in itself does not placе a convicted defendant in double jeopardy. See Pyland v. State, 302 Ark. 444, 790 S.W.2d 178 (1990) (citing Gagnon v. Scarpelli, 411 U.S. 778 (1973)). Once appellant failed to comply with the conditions of his probatiоn, the trial court was authorized, pursuant to
Appellant notes on appeal that the written conditions of probation that he received when he was рlaced on probation inaccurately noted that he was subject to “three-to-ten
In an appeal from a trial court‘s denial of рostconviction relief on a claim of ineffective assistance of counsel, the question presented is whether, under the standard sеt forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and based on the totality of the evidence, the trial court clearly erred in holding that counsel‘s pеrformance was not ineffective. Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam) (citing Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007) (per curiam)). A finding is clearly erroneous when, although there is evidence to support it, the appellate сourt, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. Under the Strickland test, a claimant must show that counsel‘s performance was deficient, and the claimant must also show that this deficient performance prejudiced his defense through a showing that petitioner was deprived of a fair proceeding. Walker v. State, 367 Ark. 523, 241 S.W.3d 734 (2006) (per curiam).
Appellant contends that the reference to a possible sentence of three-to-ten years was
Contrary to appellant‘s claim, the “three-to-ten years” notation on the form that listed the conditions of probation did not in itself constitute a “condition” that he was required to abide by while on probation. Moreover, the form was not an agreement that the later court was required to abide by. Sentencing is entirely a matter of statute. Cross v. State, 2009 Ark. 597, 357 S.W.3d 895. The original judgment set out that appellant had еntered a plea of guilty to a Class B felony. The sentencing range for a Class B felony is five to twenty years’ imprisonment.
Finally, appellant asserts that his attorney was ineffective in that she failed to object to hearsay testimony admitted into evidence at the revocation proceeding. The argument was not raised in the Rule 37.1 petition or in an amеndment to it. All grounds for relief pursuant to Rule 37.1 must be asserted in the original or an amended petition.
The court did not clearly err in finding that appellant‘s Rule 37.1 petition failed to establish a ground for relief under thе rule. Accordingly, the order is affirmed.
Affirmed.