Opinion
CR 10-630
Opinion Delivered September 23, 2010
Pro Se Motion for Appointment of Counsel, Petition for Writ of Mandamus and Motion to Stay Brief Time, and Petition for Writ of Certiorari [Circuit Court of Pulaski County, CR 2009-564, Hon. Herbert wright, Jr., Judge], Appeal Dismissed; Motions and Petitions Moot.
On December 11, 2009, judgment was entered reflecting that appellant Nickol E. Carter had entered a plea of guilty to robbery, four counts of aggravated robbery, and four counts of being a felon in possession of a firearm. An aggregate term of 420 months' imprisonment was imposed. In addition, 180 months' imprisonment was suspended on each of the four counts of aggravated robbery.
On March 11, 2010, appellant filed in the trial court a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010). On that same date, appellant also filed a pro se petition for reduction of sentence pursuant to Arkansas Code Annotated § 16-90-111 (Repl. 2003).
The court denied the Rule 37.1 petition on March 19, 2010, on the grounds that appellant had earlier filed a motion to withdraw the guilty plea that had been treated as a petition under Rule 37.1, and he was not entitled under Arkansas Criminal Procedure Rule 37.2(b) to file a second petition. The court on that day also denied the petition for reduction of sentence under § 16-90-111, holding that it had already denied postconviction relief in the case under Rule 37.1 and that it did not have jurisdiction to modify the sentence pursuant to § 16-90-111.
On March 26, 2010, appellant filed a motion asking the court to modify the order that denied the petition for reduction of sentence. In the motion, he contended that he had not been afforded effective assistance of counsel when he entered his plea of guilty and that the court should address each claim that he raised in the petition. On April 1, 2010, the court denied the motion, and appellant lodged an appeal in this court from the April 1, 2010 order. Now before us is appellant's motion for appointment of counsel, motion to stay brief time, petition for writ of mandamus, and petition for writ of certiorari in which appellant asks that the record be supplemented with letters that he wrote to the trial judge.
We need not consider the motions and petitions because it is clear from the record that appellant was not entitled to the relief sought in the motion to modify the order. This court will not permit an appeal from an order that denied a petition for postconviction relief to go forward where it is clear that the appellant could not prevail. Robertson v. State, 2010 Ark. 300, ___ S.W.3d ___ (per curiam); Mitchael v. State, 2009 Ark. 516 (per curiam) (citing Booth v. State, 353 Ark. 119, 110 S.W.3d 759 (2003) (per curiam)); Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999) (per curiam); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996) (per curiam).
A trial court is without jurisdiction to modify, amend, or revise a valid sentence once it has been put into execution. Green v. State, 2009 Ark. 113, 313 S.W.3d 521; Hodge v. State, 320 Ark. 31, 34, 894 S.W.2d 927, 929 (1995) (citing Gavin v. State, 354 Ark. 425, 125 S.W.3d 189 (2003)). A sentence is put into execution when the trial court issues a judgment of conviction or a commitment order. Gates v. State, 353 Ark. 333, 336, 107 S.W.3d 868, 869 (2003). In appellant's case, the judgment and commitment order was issued some months before the petition for reduction of sentence was filed. Appellant did not demonstrate that he was entitled to reduction of sentence pursuant to Arkansas Code Annotated § 16-90-111.
Moreover, appellant's motion to modify order and the petition for reduction of sentence that preceded it were based on allegations of ineffective assistance of counsel, which are allegations properly raised under Rule 37.1. Regardless of the label placed on a pleading, it is considered an application for relief under Rule 37.1 if the grounds asserted in it are cognizable under the rule. Jackson v. State, 2010 Ark. 157 (per curiam); McLeod v. State, 2010 Ark. 95 (per curiam); State v. Wilmoth, 369 Ark. 346, 255 S.W.3d 419 (2007); Bailey v. State, 312 Ark. 180, 848 S.W.2d 391 (1993) (per curiam). As stated, appellant had already been denied postconviction relief under the rule, and Rule 37.1(b) does not allow for a subsequent petition unless the original pleading was denied without prejudice to file a second petition. Appellant had not been granted leave to proceed again with claims cognizable under Rule 37.1.
Appeal dismissed; motions and petitions moot.