Lead Opinion
11Aрpellant Trozzie Lavelle Turner appeals the order of the circuit court denying his petition for postconviction relief. Turner was found guilty by a Columbia County jury of possession of cocaine with intent to deliver, possession of methamphetamine with intent to deliver, and maintaining a drug premises, for which he was sentenced to an aggregate total of eighty-six years in the Arkansas Department of Correction. Turner appealed, and the court of appeals affirmed. See Turner v. State,
Thereafter, counsel , for Turner filed a timely petition for' postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. The circuit court denied the petition without a hearing. Turner contends on appeal that the circuit court erred in denying his petition for postcon-viction relief because (1) trial counsel was ineffective in failing to оbject to certain statements made by the prosecutor during closing argument, and (2) trial counsel was | ^ineffective in failing to make a motion to dismiss for lack óf a speedy trial and in failing tc make an adequate record that the time for speedy trial had run before the trial started. We affirm’ in part and reverse and remand in part.
This court- does not reverse a denial of postconviction relief unless the circuit court’s findings arе clearly erroneous. Taylor v. State,
On review of claims of ineffective assistance of counsel, this court follows the standard set forth by the Supreme Court of the United States in Strickland v. Washington,
A convicted defеndant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors^ so -serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient perfоrmance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687,
Unless a defendant makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. “[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland,
| ¡,1. Prosecutor’s Comments During Closing Argument
Turner contends that trial counsel was ineffective in failing to object to certain statements made by the prosecutor in his rebuttal to trial counsel’s closing argument. First, Turner claims that, during rebuttal, the prosecutor improperly shifted the burden of proof and implied that a defendant has an obligation to refute evidence. The prosecutоr stated,
If I had been defending this case and I knew that I was going to come in here and tell twelve folks that I lived down in Emerson, do you know what I - would have given you folks? I’d have given you stacks of utility bills from Emerson, stacks and stacks of phone bills and electric bills and gas bills and cable bills. I’d have gotten my neighbors in here and said, “Yeah, I see him there every day.”
The State responds that the prosecutor’s remarks were not improper because they were directly connected to both the testimony elicited by trial counsel and trial counsel’s closing argument. We agree.
Turner’s charges stemmed from the execution of a search warrant on a residence in Magnolia, Arkansas, during which law enforcement officers seized cocaine and methamphetamine. Part of Turner’s defense was that he, did not live at the Magnolia residence from which illegal drugs were being sold. During thе trial, trial counsel elicited testimony from Turner’s brother, among others, that Turner lived in Emerson, Arkansas, when the drugs were discovered. In closing argument, trial counsel reiterated that Turner lived in Emerson, not Magnolia. In closing argument, counsel may argue any plausible inference that can be drawn from the testimony at trial. See, e.g., Jackson v. State,
Second, Turner claims that trial counsel was ineffective in failing to object to the following comment by the prosecutor: “You folks know there’s a lot more going on that you didn’t get to hear.” In support of his claim, Turner makes conclu-sory allegations that the prosecutor’s statement suggested that there was inadmissible evidence favorable to the State, and he provides a string cite to cases from other jurisdictions. This court does not consider assignments of error that are unsupported by convincing argument or authority. E.g., Young v. State,
Third, Turner contends that trial counsel was ineffective in failing to object when the prosecutor made a veiled reference to his failure to testify at trial:
If you find this man guilty, remember the suggestion in this case is that, “I wasn’t there. It ain’t my house:' I don’t live there. It’s my sister’s furniture, but it doesn’t matter, because the police planted the dope anyway. That’s his case.”
(Emphasis added.)
An allegedly improper comment on the defendаnt’s failure to testify usually occurs during the prosecutor’s closing argument when the evidence is closed and the defendant’s opportunity to testify has passed. Decay,
Closing’ arguments must be confined to questions in issue, the evidence introduced at trial, and all reasonable inferences and deductions that can be drawn therefrom. E.g., Leaks v. State,
Moreover, the jury was instructed that opening statements, remarks of counsel during the trial, and closing arguments of the attorneys were not evidence and to disregard any argument, statements, or remarks of attorneys that had no basis in the evidence. The jury was also instructed that Turner had an absolute constitutional right not to testify and the fact that he did not testify was not evidence of his guilt. This' court presumes that jurors follow the circuit court’s instructions. E.g., Dunlap v. State,
Finally, even if Turner has demonstrated that trial counsel’s performance was deficient when he failed to object to the comments, Turner has failed to demonstrate prejudice. Before a petitioner can prevail on an allegation that counsel failed to object during closing argument, he must establish that he was denied a fair trial by counsel’s failure to objеct. See, e.g., Hayes v. State,
II. Speedy Trial
Turner contends that trial counsel was ineffective in failing to move for dismissal for lack of a speedy trial and in failing to make an adequate record that the time for speedy trial had run before the trial started. Pursuant to Arkansas Rule of Criminal Procedure 28.1 and 28.2, a defendant must be brought to trial within twelve months of the date of his arrest unless there are periods of delay that are excluded under Rule 28.3. If the defendant is not brought to trial within the requisite time, the defendant is entitled to have the charges dismissed with an absolute bar to prosecution. Ark. R.Crim. P. 28.1(c), 30.1.
Turner was arrested on March 9, 2006. He was brought to trial on October 8, 2008, which was 944 'days after the-time for speedy trial had begun to run. Accordingly, if trial counsel had moved for a dismissal, hе would have made • a prima facie showing of a violation of the rule, and the burden would have shifted to the State to show good cause for the delay. Camargo,
In its order denying postconviction relief, the circuit сourt found no merit in Turner’s argument that trial counsel was ineffective in failing to make a motion to dismiss for lack of a speedy trial and in failing to make an adequate record that the time for speedy trial had run before the trial started. The court stated,
, | sThe record is clear the Defendant agreed to continuances with extended periods for speedy trial purposes and he specifically agreed for the time to be excluded until the date of his jury trial. The matter was set for trial several times; the. majority, if not all, of the continuances were at the request of the Defendant.
Turner asserts that the circuit court’s order is deficient because it did not include specific factual findings regarding periods excludable for speedy trial, but merely determined, in conclusory fashion, that the majority, if not all, of the continuances were at the request of thе defendant. We agree. When no hearing is held on a Rule 37.1 petition, the trial court has an obligation to provide written findings that conclusively show that the petitioner is entitled to no relief. Camacho v. State,
This court has affirmed the denial of a Rule 37.1 petition notwithstanding the circuit court’s fаilure to make sufficient findings under Rule 37.3(a) only in two circum-. stances: (1) when it can be determined from the record that the petition is wholly without merit, or (2) when the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted. See Davenport v. State,
Affirmed in part; reversed and remanded in part.
Notes
. Turner contends that, standing alone, the prosecutor’s comments are egregious, but when taken together, they are even more egregious and prejudicial. Inasmuch as Turner is making a cumulative-error argument, we do not address it because this court does not recognize cumulative error in allegations of ineffective assistance of counsel. E.g., Noel v. State,
Dissenting Opinion
dissenting.
I dissent from the majority’s opinion because it is fatally flawed for two reasons. First, rather than adhere to the standard in Strickland v. Washington,
Burden of Proof
The majority correctly cites to Strickland and states that “[ujnless a defendant makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.” However, despite correctly citing the Strickland standard, the majority improperly shifts the burden of proof to the State to demonstrate that the delay was the result of the defendant’s conduct or was otherwise justified. Pursuant to Strickland, it is the petitioner’s burden to affirmаtively prove prejudice, which requires proof “that there is a réasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Whether trial counsel was ineffective under Strickland is predicated on whether Turner was, in fact, tried in violation of the speedy-trial rule. See Camargo v. State,
Here, Turner was arrested on March 9, 2006. Rule 28.2(a) states that the time for trial shall commence running from the date of arrest or service of summons. Thus, speedy trial began to run on March 9, 2006. The State had twelve months from the time of Turner’s arrest to bring him to trial, excluding only such periods of necessаry delay as are authorized in Rule 28.3. Ark. R.Crim. P. 28.1(c). Turner’s jury trial began on October 8, 2008, which was 944 days after his arrest. While I recognize that if trial counsel had moved for a dismissal below, he would have made a prima facie showing of a violation of the rule. At that point, the burden would have shifted to the State to show that the delay was the result of the defendant’s conduct or was otherwise justified. Branning v. State,
With the correct standard in mind, I will now consider the substance of Turner’s Inargument and whether he demonstrated that a speedy-trial violation occurred. Here, several continuances were granted at the request of Turner’s counsel. Turner admits that 281 dаys are properly excluded for continuances granted pursuant to his request. Rule 28.3 states that the “following periods shall be excluded in computing the time for trial.” Rule 28.3(c) provides:
The period of delay resulting from a continuance granted at the request of the defendant or his counsel. All continuances granted at the request of the defendant or his counsel shall be to a day certain, and the period of delay shall be from the date the continuance is granted until such subsequent date contained in the order or docket entry granting the continuance.
Turner’s argument focuses on three continuances which were granted at Turner’s request but in which neither the order nor the docket entry contained a subsequent “day certain” to which the matter was continued. The three orders at issue are (1) the April 25, 2007 order of continuance, continuing the May 10, 2007 trial; (2) the August 22, 2007 оrder of continuance continuing the trial set for the same day; and (3) the November 30, 2007 order of continuance continuing the trial set for November 19, 2007.
Appellant’s only argument on appeal is that this continuance cannot be charged against him because the trial court did not enter an order or a docket entry specifying a date | ^certain in literal compliance with Ark. R.Crim. P. 28.3(c). Yet, excluded periods without a written order or docket entry will be upheld when the record clearly demonstrates that the delays were attributable to the accused or legally justified and wherе the reasons were memorialized in the proceedings at the time of the occurrence. See Miles, supra. This is true even when the date is not specified. See Burrell v. State,65 Ark. App. 272 ,986 S.W.2d 141 (1999).
[Although a trial court should enter written orders, or make docket notations at the time continuances are granted to detail the reason for the continuances and to specify to a date certain the time covered by such excluded periods, a trial court’s failure to comply with Rule 28.3 does not result in automatic reversal. See McConaughy, supra; Cox v, State,299 Ark. 312 ,772 S.W.2d 336 (1989). We have held that when a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be suffiсient to satisfy the requirements of Rule 28.3. Id. This is based on the familiar principle that a defendant may not agree with a ruling by the trial court and then attack that ruling on appeal. Goston v. State,326 Ark. 106 ,930 S.W.2d 332 (1996).
Rule 37.3 Findings
Next, Turner argues that the circuit court’s order denying relief on this point did not contain sufficient factual findings as required by Rule 37.3. The circuit court found:
The record shows that there was no speedy trial violation. The defense counsel cannot bе ineffective for not raising and making a record that speedy trial had run when it had 11 snot. The record is clear the Defendant agreed to continuances with excluded periods for speedy trial purposes and he specifically agreed for the time to be excluded until the date of his jury trial.
The majority explains that “[t]his court has affirmed the denial of a Rule 37.1 petition notwithstanding the circuit court’s failure to make sufficient findings under Rulе 37.3(a) only in two circumstances: (1) when it can be determined from the record that the petition is wholly without merit, or (2) when the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted.” See Davenport v. State,
The record does not support the majority’s analysis. The circuit court’s findings were clearly sufficient because the record demonstrates that each of the orders granting a continuance were made at the request of Turner’s counsel. Because the record demonstrates that the delays were attributable to Turner, thе record is sufficient to satisfy the requirements of Rule 28.3 and this court’s holding in Standridge. Therefore, the order denying Turner’s petition for postconviction relief contained sufficient findings for this court’s review.
In sum, because the majority departed from the Strickland standard and improperly shifted the burden of proof to the State, and because the circuit court’s order denying Turner’s petition contained sufficient findings, I must respectfully dissent.
Goodson and Wood, JJ., join in this dissent.
. The order was dated November 13, 2007, but it was not file marked until November 30, 2007.