Newton v. State , 453 S.W.3d 125 ( 2014 )

Cite as 2014 Ark. 538
SUPREME COURT OF ARKANSAS
No. CR-14-15
ARTHUR LEE NEWTON Opinion Delivered December 18, 2014
APPELLANT
PRO SE APPEAL FROM THE DREW
V. COUNTY CIRCUIT COURT
[NO. 22CR-10-155]
STATE OF ARKANSAS HONORABLE SAM POPE, JUDGE
APPELLEE
AFFIRMED.
PER CURIAM
In 2011, appellant Arthur Lee Newton was found guilty by a jury in the Drew County
Circuit Court of sexual indecency with a child and sexual assault in the second degree. He was
sentenced to an aggregate term of 288 months’ imprisonment. The Arkansas Court of Appeals
affirmed. Newton v. State, 2012 Ark. App. 91. The mandate issued on February 15, 2012.
On July 9, 2012, appellant filed in the trial court a pro se petition for postconviction relief
pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). In the petition, appellant alleged
that he was entitled to relief because trial counsel was ineffective based on the failure to call a
key witness to testify, the victim’s statements were coerced, the prosecuting attorney examined
the victim at trial with regard to her prior statement, and he was made to sign a “Sex Offender
Acknowledgment Form” before he was found guilty of the charged crimes. The trial court
dismissed the petition with prejudice based on a finding that it was untimely, and appellant did
not appeal the order.
Subsequently, appellant, while incarcerated in a facility in Lee County, filed in the Lee
Cite as 2014 Ark. 538
County Circuit Court a second pro se petition for postconviction relief, and the circuit court
denied the petition. Appellant lodged an appeal here, and we dismissed the appeal on the
ground that it was clear from the record that appellant could not succeed if the appeal were
permitted to go forward as the circuit court did not have jurisdiction to consider the petition.
Newton v. State, 2013 Ark. 320 (per curiam).
On September 20, 2013, appellant filed in the trial court a third pro se petition for
postconviction relief in which he made substantially the same allegations as he raised in his first
postconviction petition, namely that he was entitled to relief because counsel was ineffective in
failing to call key witnesses to testify, the victim’s statement was coerced, the prosecuting
attorney engaged in leading questions during his examination of the victim at trial, he was made
to sign a “Sex Offender Acknowledgment Form” before the jury found him guilty of the
charged offenses, and the jury was made aware that he had signed the acknowledgment form.
Appellant also seemed to allege that his first petition was untimely because he had been ill and
was in the infirmary. Considering the petition to be an application for relief pursuant to Rule
37.1, the trial court denied and dismissed the petition. In its order, the trial court, recognizing
that it had previously found that the first Rule 37.1 petition was untimely, found that appellant
could not file a subsequent petition for postconviction relief when a Rule 37.1 petition alleging
essentially the same claims had already been denied as being untimely. Appellant lodged an
appeal from that order.
On appeal, appellant contends that he is entitled to postconviction relief because his trial
attorney failed to call key witnesses to testify and allowed the prosecuting attorney to badger a
2
Cite as 2014 Ark. 538
witness at trial. Appellant also alleges, as he did in his petition, that he failed to timely file his
first petition because he had been ill and was in the infirmary. Appellant contends for the first
time on appeal that the untimely filing of his first petition should be excused based on
ineffective assistance of counsel during “initial-review collateral proceedings” because, after his
conviction was affirmed, his attorney told him that he had no other “options” and abandoned
him. Because arguments raised for the first time on appeal could not have been considered by
the lower court, they will not be addressed by this court. Hill v. State, 2014 Ark. 420 (per
curiam); Green v. State, 2013 Ark. 455 (per curiam).
Appellant’s claim of ineffective assistance of counsel is cognizable under our
postconviction rule, Rule 37.1.1 A petition that states a claim for postconviction relief
cognizable under Rule 37.1 is governed by that rule regardless of the label placed on it by a
petitioner. Ussery v. State, 2014 Ark. 186 (per curiam); Newton, 2013 Ark. 320. Rule 37.2(b)
provides that all grounds for relief available to a petitioner under the Rule must be raised in his
or her original petition unless the original petition was denied without prejudice to filing a
second petition. If a first petition under the Rule is denied without leave to proceed with a
second petition, a petitioner under the Rule is barred from submitting a subsequent petition.
Ewells v. State, 2014 Ark. 351, 439 S.W.3d 667 (per curiam); Cooper v. State, 2013 Ark. 243 (per
curiam). Moreover, pursuant to Arkansas Rule of Criminal Procedure 37.2(c), when there was
an appeal from a judgment of conviction, a petition for relief must be filed in the trial court
1
The remaining claims alleged in the petition were allegations of trial error, and such
allegations should have been raised in the trial court at the time of trial. Trial error is a matter
for the trial court to address. See Nickelson v. State, 2013 Ark. 252 (per curiam).
3
Cite as 2014 Ark. 538
within sixty days of the date that the mandate was issued by the appellate court. The time
limitations imposed in Rule 37.2(c) are jurisdictional in nature, and, if the petition is not filed
within that period, a trial court lacks jurisdiction to grant postconviction relief. Ewells, 2014 Ark.
351, 439 S.W.3d 667. A petitioner, even one proceeding pro se, must conform to the prevailing
rules of procedure. See Tarry v. State, 346 Ark. 267, 57 S.W.3d 163 (2001). Here, appellant’s first
petition was dismissed as untimely with prejudice, and appellant did not appeal that order.
Subsequently, the September 20, 2013 petition was likewise untimely as it was not filed within
the sixty-day period; thus, the trial court had no jurisdiction to grant the relief sought. When the
trial court lacks jurisdiction, the appellate court also lacks jurisdiction. Pruitt v. State, 2014 Ark.
258 (per curiam).
To the extent that appellant is seeking appointment of counsel for the appeal,
postconviction matters are considered civil in nature, and there is no absolute right to
appointment of counsel. Anthony v. State, 2014 Ark. 195 (per curiam). We have held that, if an
appellant makes a substantial showing that he is entitled to relief in a postconviction appeal and
that he cannot proceed without counsel, we will appoint counsel. Evans v. State, 2014 Ark. 6.
Here, because the trial court did not have jurisdiction to act on the merits of the petition and this
court does not have jurisdiction in the matter, appellant cannot meet his burden of establishing
that he is entitled to appointment of counsel.
Affirmed.
Arthur Lee Newton, pro se appellant.
Dustin McDaniel, Att’y Gen., by: LeaAnn J. Adams, Ass’t Att’y Gen., for appellee.
4