Young v. State , 2013 Ark. 513 ( 2013 )

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                                      Cite as

2013 Ark. 513

SUPREME COURT OF ARKANSAS
No.   CR-13-629
Opinion Delivered   December 12, 2013
LESLIE YOUNG                                        PRO SE APPEAL FROM THE SHARP
APPELLANT           COUNTY CIRCUIT COURT AND PRO
SE PETITION FOR WRIT OF
v.                                                  CERTIORARI [68CR-06-06]
STATE OF ARKANSAS
APPELLEE          HONORABLE HAROLD S. ERWIN,
JUDGE
AFFIRMED; PETITION FOR WRIT OF
CERTIORARI MOOT.
PER CURIAM
In 2006, appellant Leslie Young was found guilty by a jury of capital murder, aggravated
robbery, attempted arson, and two counts of theft of property. She was sentenced to an
aggregate term of life imprisonment without parole plus 636 years. This court affirmed the
judgment in part, but remanded for a new suppression hearing. Young v. State,

370 Ark. 147

257 S.W.3d 870

 (2007). We later affirmed the trial court’s decision following remand to deny the
motion to suppress. Young v. State,

373 Ark. 41

281 S.W.3d 255

 (2008). The mandate issued
on April 8, 2008.
On February 27, 2009, appellant filed in the trial court a petition for postconviction relief
under Arkansas Rule of Criminal Procedure 37.1 (2006) that was denied. Appellant did not
perfect an appeal, and this court later denied her motion to proceed with an appeal on the
ground that the Rule 37.1 petition was not timely filed. Young v. State,

2009 Ark. 556

 (per
Cite as

2013 Ark. 513

curiam).
On March 22, 2013, appellant filed in the trial court a pro se motion for a new sentencing
hearing. In the motion, she contended that her counsel at trial erred in not informing her of a
plea bargain offered by the prosecution until after she had been convicted. The motion was
denied, and appellant brings this appeal. She has also filed a petition for writ of certiorari to
complete the record in which she asks that this court direct the circuit clerk to lodge the appeal
record. As the appeal has been lodged here, the petition is moot. We find no error and affirm
the trial court’s order denying the motion for a new sentencing hearing.
The motion filed in the trial court constituted an untimely petition for postconviction
relief pursuant to Arkansas Rule of Criminal Procedure 37.1. Claims of ineffective assistance
of counsel are properly raised under Arkansas law pursuant to Rule 37.1, and a petition that
mounts a collateral attack on a judgment based on claims within the purview of Rule 37.1 is
governed by that rule regardless of the label placed on it by the petitioner. Ybarra v. State,

2013 Ark. 423

 (per curiam); Holliday v. State,

2013 Ark. 47

 (per curiam). As appellant’s allegation was
cognizable under Rule 37.1, the motion was subject to the time limitations contained in the rule.1
Hickman v. State,

2012 Ark. 359

 (per curiam).
Pursuant to Arkansas Rule of Criminal Procedure 37.2(c), when there was an appeal from
1
Appellant cites Lafler v. Cooper, ___ U.S. ___,

132 S. Ct. 1376

 (2012), and Missouri v. Frye,
___ U.S. ___,

132 S. Ct. 1399

 (2012), as authority for permitting the issue of ineffective
assistance of counsel to be raised in her case five years after the judgment-and-commitment
order was affirmed on appeal, but she did not offer any authority that either case was intended
to have a retroactive application. See Chaidez v. United States, ___ U.S. ___,

133 S. Ct. 1103

 (2013)
(holding that the ineffective-assistance-of-counsel claim recognized in Padilla v. Kentucky,

599 U.S. 356

 (2010) concerning counsel’s failure to advise the defendant about the risk of
deportation arising from a guilty plea did not have a retroactive effect).
2
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2013 Ark. 513

a judgment of conviction, a petition for relief must be filed in the trial court 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. Holliday,

2013 Ark. 47

; Bates v. State,

2012 Ark. 394

 (per curiam); Talley v. State,

2012 Ark. 314

 (per curiam). The petition before the trial
court was not timely filed, and, thus, the trial court had no jurisdiction to grant the relief sought.2
Where the trial court lacks jurisdiction, the appellate court also lacks jurisdiction. Holliday,

2013 Ark. 47

; Winnett v. State,

2012 Ark. 404

 (per curiam).
Appellant also contended in the motion that she was prejudiced by being denied her right
to attend any pretrial or omnibus hearing, but that allegation is not raised in appellant’s brief on
appeal. Thus, the issue is considered abandoned. Tate v. State,

2013 Ark. 380

 (per curiam).
Affirmed; petition for writ of certiorari moot.
Leslie Young, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
2
The motion also amounted to a second petition under the Rule and was subject to
dismissal on that basis. Rule 37.1(b) does not allow for a second petition to be filed unless the
first petition was specifically dismissed without prejudice. See Omar v. State,

2011 Ark. 55

 (per
curiam). Because appellant had already filed a Rule 37.1 petition that was not denied without
prejudice, she was barred from submitting a subsequent petition. See Gonder v. State,

2011 Ark. 248

382 S.W.3d 674