Ardwin SYLVESTER, Appellant v. STATE of Arkansas, Appellee
No. CR-16-970
Supreme Court of Arkansas
November 9, 2017
2017 Ark. 309
Here, in its order, the circuit court ruled that “[e]xhaustion of administrative remedies is not required, as irreparable injury will result if the [appellees] are compelled to pursue administrative remedies, and an administrative appeal would be futile.” We agree with the circuit court‘s ruling for two reasons. First, any irreparable harm to appellees warrants application of the futility exception set forth in our exhaustion-of-remedies case law. Second,
Therefore, we hold that the circuit court did not abuse its discretion in granting appellees’ motion for temporary restraining order. Accordingly, we affirm.
Affirmed.
KAREN R. BAKER, Associate Justice
Appellant Ardwin Sylvester appeals from the denial of his pro se petition for postconviction relief filed pursuant to
On May 14, 2015, Sylvester was convicted by a jury of kidnapping, rape, and aggravated robbery and was given the maximum sentence of three terms of life imprisonment. We affirmed the convictions and sentences. Sylvester v. State, 2016 Ark. 136, 489 S.W.3d 146. Sylvester then filed a timely petition pursuant to
It is an appellant‘s obligation to obtain a ruling to preserve an issue for appellate review. Fisher v. State, 364 Ark. 216, 223, 217 S.W.3d 117, 123 (2005) (citing Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000)). Because Sylvester failed to obtain a ruling from the trial court on the allegation surrounding the DNA report, the issue is not preserved for review on appeal. Moreover, of the multiple ineffective-assistance-of-counsel claims raised in his Rule 37.1 petition and ruled on by the trial court, Sylvester raises only one of those claims in his argument on appeal. Arguments made to the trial court but not included in the arguments on appeal are considered abandoned. Jordan v. State, 356 Ark. 248, 256, 147 S.W.3d 691, 696 (2004) (citing Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001)). As Sylvester has abandoned the majority of his ineffective-assistance-of-counsel claims, we address the sole attorney-error claim preserved on appeal that his trial counsel erroneously failed to call his mother as a mitigation witness.
When considering an appeal from a trial court‘s denial of a Rule 37 petition, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104
There is no reason for a court deciding an ineffective-assistance-of-counsel claim to address both components of the inquiry if a petitioner makes an insufficient showing on one. Springs v. State, 2012 Ark. 87, at 4, 387 S.W.3d 143, 148 (citing Strickland, 466 U.S. at 697, 104 S. Ct. 2052). This court has repeatedly held that matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel‘s professional judgment and are not grounds for a finding of ineffective assistance of counsel. Id. at 22, 387 S.W.3d at 158. The decision whether to call a particular witness is a matter of trial strategy that is outside the purview of Rule 37. Noel v. State, 342 Ark. 35, 42, 26 S.W.3d 123, 128 (2000). Here, the record demonstrates that Sylvester‘s trial counsel testified that he had spoken with Sylvester‘s mother before, and at the time of, trial and made the strategic decision that her testimony would harm rather than help Sylvester, in that she had shown a tendency to blame Sylvester‘s parole officer for his crimes. Because the decision not to call Sylvester‘s mother as a witness falls within the realm of trial counsel‘s professional judgment, the trial court did not clearly err when it denied this claim of ineffective assistance of counsel.
Sylvester‘s remaining ground for reversal is a claim of trial-court error. Sylvester contends that the trial court erred when it summarily denied his pro se motion for a new trial filed pursuant to
A review of the record demonstrates that Sylvester filed a pro se motion for new trial that alleged multiple claims of ineffective assistance of counsel and that he also filed pro se motions for appointment of counsel and an evidentiary hearing. These pro se posttrial motions were filed after the notice that appealed the underlying judgment of conviction had been filed by Sylvester‘s trial counsel. However, even though a notice of appeal had been filed, the record on direct appeal was not lodged until June 18, 2015, two hours after the trial court entered its order denying Sylvester‘s posttrial motions.1 Therefore, at the time the trial court filed the order denying relief, it had jurisdiction of the matter, and the order was subject to review on direct appeal. See Myers v. Yingling, 369 Ark. 87, 89, 251 S.W.3d 287, 290 (2007) (Once the record is lodged in
Following the denial of his posttrial motions, Sylvester lodged a timely pro se notice of appeal pursuant to
However, despite Sylvester‘s supplemental notice of appeal, his appointed appellate counsel did not take steps to preserve the issues raised in the motion for new trial or otherwise challenge the trial court‘s order denying Sylvester‘s pro se posttrial motions.2 Thus, the issue of trial-court error related to the denial of Sylvester‘s motion for new trial could have been raised and reviewed on direct appeal, but for appellate counsel‘s failure to do so.
Generally, Rule 37 does not provide a remedy when an issue could have been raised in the trial or argued on appeal. Howard v. State, 367 Ark. 18, 26-27, 238 S.W.3d 24, 32 (2006) (citing Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001)). However, there is an exception to this general rule for errors that are so fundamental as to render the judgment of conviction void and subject to collateral attack. Id. (citing Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000) (double-jeopardy claim was fundamental claim); Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996) (right to twelve-member jury); Jeffers v. State, 301 Ark. 590, 786 S.W.2d 114 (1990) (lack of jurisdiction of trial court)). Sylvester‘s claim of trial-court error in this instance does not meet the fundamental-error standard. Because the claim that the trial court erred by denying Sylvester‘s pro se posttrial motion was subject to review on direct appeal, it is not cognizable in a postconviction proceeding. Howard, 367 Ark. at 26-27, 238 S.W.3d at 32.
Affirmed.