Stewart v. State

David Newbern, Justice.

The appellant, Theodore Clark Stewart, was convicted of burglary. He petitioned the court for a new trial, pursuant to Ark. R. Crim. P. 37, alleging that his lawyer had been ineffective. The court denied relief, without holding a hearing, on the ground that the petition stated only conclusions rather than facts in support of the allegation. As we believe the petition stated sufficient facts to warrant a hearing, the case is reversed and remanded.

The petition alleged that Stewart’s counsel interviewed none of the state’s witnesses and did not file a discovery motion to obtain the statements of the state’s witnesses from the police. It alleged that counsel also did not interview any of the defense witnesses whose names had been furnished to counsel. Specifically, Stewart contends his brothers would have testified he was with them at the time the burglary was committed. He also claims that had “hospital personnel” been called on his behalf, they, along with his family members, could have testified that injuries he received were “consistent with” a car injury instead of the injury he was alleged by the state to have received in the course of committing the burglary.

If a Rule 37 petition is meritless on its face, no evidentiary hearing need be held. Smith v. State, 290 Ark. 90, 717 S.W.2d 193 (1986). No hearing need be held if the trial court can determine conclusively from the record that the petitioner’s contentions are meritless. Morrison v. State, 288 Ark. 636, 707 S.W.2d 323 (1986).

Although the petition did not give the names of the “medical personnel” who might have testified on Stewart’s behalf, that may well have been because he did not know who they were and had no way to find out without counsel’s assistance. We cannot tell from the record before us now. Stewart’s description of the testimony they might have given is sufficient to make his allegation more than conclusory. Nor do we deem it fatal to the petition that Stewart did not give the names of his brothers. His statement that they would have given alibi testimony is also more than conclusory.

Although the trial judge entered a number of factual findings about the procedural history of the case, indicating that Stewart’s present counsel had filed the petition and had done nothing about it for several years, he made no findings based on the record with respect to Stewart’s allegations. It is reversible error for the trial judge to fail to make reference to the parts of the record relied upon to deny the petition, Robinson v. State, 264 Ark. 186, 569 S.W.2d 662 (1978), unless we can conclude from the record as a whole that the petition has no merit. Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979). We can reach no such conclusion based on the record before us. The denial of the petition is reversed, and the case is remanded for a hearing pursuant to Ark. R. Crim. P. 37.3(c).

Hickman and Hays, JJ., dissent.