Smith v. State ( 1986 )

Darrell Hickman, Justice.

This is an appeal from an order denying a petition for postconviction relief pursuant to A.R.Cr.P. Rule 37. The issues before us are whether the trial court was correct in denying the petition and whether the trial court’s order satisfies A.R.Cr.P. Rule 37.3(a). We find no merit to these issues and affirm.

Smith was convicted on March 9, 1983, of burglary and, with nine previous convictions, was sentenced as a habitual offender to 30 years imprisonment, to be served consecutively to any previously imposed sentences. After his conviction, Smith filed several motions instead of appealing the conviction. A motion for a belated appeal was denied by us in March, 1984. Smith then requested a free transcript and the appointment of a psychiatrist which were denied by the trial court. He filed for a writ of error coram nobis and four petitions for postconviction relief. After Smith requested a writ of mandamus from us ordering the trial court to rule on his motions, the trial court issued an order on December 27, 1985, denying the relief. The order read:

This Court, having reviewed this entire file finds that the petitioner fails to allege a cause of action for relief under a Rule 37 proceeding. That the Petitioner failed to perfect an appeal of his conviction herein and the Supreme Court has denied his request for a belated appeal.

IT IS THEREFORE the order of this Court that the relief prayed for be and the same is hereby denied.

Smith argues two errors were committed. First, the trial court was wrong in denying the petition, because it failed to state a cause of action. The petition alleged ineffective assistance of counsel and incompetency to stand trial because of a mental defect. The petition was couched entirely in conclusory language unsupported by any facts and was, therefore, patently deficient. We have held numerous times that a Rule 37 petition must contain statements of fact to support its allegations. Henry v. State, 288 Ark. 592, 708 S.W.2d 88 (1986); Walker v. State, 277 Ark. 284, 641 S.W.2d 19 (1982).

Smith’s second argument is that the trial court erred by not holding an evidentiary hearing or making written findings of fact as required by Rule 37.3 (a). There was no hearing and none was required because the petition on its face was without merit because Smith failed to set forth any facts supporting his allegations. We have dismissed numerous petitions for this reason and affirmed the trial court for just such action. In Lomax v. State, 285 Ark. 440, 688 S.W.2d 283 (1985), the trial court denied a petition without an evidentiary hearing, and we said:

The circuit court need not hold an evidentiary hearing where it can be conclusively shown on the record or the face of the petition itself, as it can be in this case, that the allegations have no merit. See Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979). On appeal, we affirm the trial court’s denial of postconviction relief unless it is clearly against the preponderance of the evidence. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984).

This case is precisely the same set of circumstances. The petition was deficient on its face. The trial court examined all the records in this case and found that Smith failed to state a cause of action. That satisfied Rule 37.3 (a). See Morrison v. State, 288 Ark. 636, 707 S.W.2d 323 (1986).

Affirmed.

Purtle, J., dissents.