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In Robbins, 2010 Ark. 312, this court noted that any posttrial motion made after a Rule 37.1 decision is ineffective and does not extend the time for filing the notice of appeal. Robbins, 2010 Ark. 312, at 2 (quoting McJames v. State, 2010 Ark. 74, at 4).
Summary of this case from Hooper v. HobbsOpinion
CR 10-586
Opinion Delivered June 24, 2010
Motion for Rule on Clerk, Denied.
This case has a lengthy and complex procedural history. Robert Robbins was convicted of murdering his ex-girlfriend, Bethany White, in 1998. Robbins insisted on representing himself and actively sought the death penalty from the jury; the court allowed him to represent himself but had attorney Val Price function as stand-by counsel. The jury sentenced him to death, and Robbins initially waived his right to appeal his conviction and sentence, a waiver that this court upheld in Robbins v. State, 335 Ark. 380, 985 S.W.2d 293 (1998) (per curiam) ( Robbins I).
In State v. Robbins, 336 Ark. 377, 985 S.W.2d 296 (1999) (per curiam) ( Robbins II), this court held that Robbins had also waived his right to seek postconviction relief pursuant to Ark. R. Crim. P. 37.5. Robbins's mother subsequently asked this court to re-examine the case, and in response, this court recalled the mandate, stayed the execution, and ordered briefing on the question of whether this court should impose a mandatory review for trial error in all death cases. State v. Robbins, 337 Ark. 227, 987 S.W.2d 709 (1999) (per curiam) ( Robbins III). Upon receiving those briefs, this court partially overruled Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), and held that we have an affirmative duty to automatically review the record in all death-penalty cases for egregious and prejudicial errors. State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999) ( Robbins IV) (remanding for preparation of the record and appointing counsel to assist this court in its review). In State v. Robbins, 342 Ark. 262, 27 S.W.3d 419 (2000) ( Robbins V), this court held that no prejudicial or plain error occurred during Robbins's trial and that all fundamental safeguards had been followed; accordingly, we affirmed his conviction and death sentence.
Robbins then sought federal habeas corpus relief, arguing that the jury had rendered inconsistent findings on the verdict forms. The federal court ruled that Robbins's claims had not yet been addressed in state court and dismissed his petition for failure to exhaust his state remedies. In Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003) ( Robbins VI), this court granted Robbins's motion to reopen the case and issued a writ of certiorari, ordering that the record be supplemented with the original verdict forms. Upon receipt of those forms, this court held that any alleged inconsistencies in the verdict forms amounted to harmless error and affirmed Robbins's death sentence. Robbins v. State, 356 Ark. 225, 149 S.W.3d 871 (2004) ( Robbins VII).
After rehearing was denied and the mandate issued in Robbins VII, Robbins filed a motion for postconviction relief pursuant to Ark. R. Crim. P. 37.5. (The partial record before us does not contain a copy of that petition.) The Craighead County Circuit Court held a hearing on Robbins's petition in December of 2009. One of the issues raised in the petition was the location of Price's file from Robbins's original trial. Price testified at the hearing that the file obtained from the Public Defender's office in preparation for the postconviction proceedings was not his complete file. Price, who had since left the Public Defender's office and become a deputy prosecuting attorney, testified that his file was more substantial than the one introduced previously at the hearing, and that he did not know what the Public Defender's office had done with his file.
The circuit court entered an order on January 19, 2010, denying Robbins's petition for postconviction relief, determining that Robbins had not been denied effective assistance of counsel. The court ultimately found, however, that "the interest of justice would warrant a reduction of the death sentence to a sentence of life without the possibility of parole due to the age of the defendant and the lack of mitigation in the sentencing phase of the trial." Thus, the court reduced Robbins's sentence from death to life without parole.
On February 17, 2010, Robbins's attorney, Dale Adams, filed a motion to reopen the Rule 37.5 hearing, asserting that, on January 19, 2010, he was informed that Val Price had located the missing files. Upon receiving those files, Adams discovered that they contained important materials pertaining to Robbins's history of psychological problems and requests for mental evaluations. Adams sought permission from the circuit court to reopen the Rule 37.5 hearing to allow the files to be placed into evidence and to recall Price to offer additional testimony. The State objected, and the circuit court denied the motion in an order entered on February 26, 2010.
Adams filed a notice of appeal on Robbins's behalf on March 9, 2010. When he attempted to lodge the record with this court, however, he was informed that his notice of appeal was untimely because it had not been filed within thirty days of the original order denying relief, but had instead been filed within thirty days of the order denying reopening of the Rule 37.5 hearing. On June 8, 2010, Adams filed the present motion for rule on clerk or, alternatively, for belated appeal.
Rule 37.2(d) of the Arkansas Rules of Criminal Procedure provides that "[t]he decision of the court in any proceeding under this rule shall be final when the judgment is rendered. No petition for rehearing shall be considered." In his motion for rule on clerk or for belated appeal, Robbins urges that his request before the circuit court to reopen the Rule 37.5 proceedings was not a "petition for rehearing," but was instead an attempt to place into the record evidence that he was unable to discover, through no fault of his own, prior to the hearing. Because the motion was not a petition for rehearing contemplated by Rule 37.2(d), he argues, it should have extended the time for filing the notice of appeal.
We disagree. This court has held that " any posttrial motion made after a Rule 37 decision is ineffective and does not extend the time for filing the notice of appeal." McJames v. State, 2010 Ark. 74, at 4 (emphasis added) (citing Morgan v. State, 360 Ark. 264, 200 S.W.3d 980 (2005)). Robbins attempts to distinguish McJames on the grounds that it involved a motion for reconsideration, rather than a motion to reopen the proceedings, and he urges this court to be guided by Rule 33.3 of the Arkansas Rules of Criminal Procedure, which governs posttrial motions following a conviction. This court held in McJames, however, that "Rule 33.3's deemed-denied provision is . . . inapplicable to Rule 37 proceedings." McJames, 2010 Ark. 74, at 4 (citing Young v. State, 373 Ark. 264, 283 S.W3.d 188 (2008)).
Robbins also urges that this court should "be guided by" Arkansas Rule of Appellate Procedure-Criminal 2 and Arkansas Rule of Appellate Procedure-Civil 4. He provides this court with no authority supporting the applicability of these rules in this context, however, and we decline to address the issue further. See Carter v. State, 2010 Ark. 231, ___ S.W.3d ___ (we need not consider an argument when a claimant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken).
We have noted that a defendant can request that a circuit court modify its order to include an issue that was raised in a Rule 37 petition, but not addressed in the order. This is because the failure to obtain a ruling on an issue precludes this court's review of it on appeal. See Watkins v. State, 2010 Ark. 156, ___ S.W.3d ___ (where the trial court provides written findings on at least one, but less than all, of the petitioner's Rule 37 claims, an appellant has the obligation to obtain a ruling on any omitted issues if they are to be considered on appeal); Matthews v. State, 333 Ark. 701, 975 S.W.2d 836 (1998).
The present case does not present such a situation, however. As noted above, the "newly discovered evidence" pertains to Robbins's mental status and various requests for further mental evaluations prior to trial. The trial court's order denying postconviction relief addresses Robbins's mental status, however, noting that Robbins was examined by the Arkansas State Hospital prior to trial and no mental disease or defect was found. In addition, the circuit court went the extra step before trial of having Dr. Michael Simon address the question of Robbins's competence to seek the death penalty, and Dr. Simon found no evidence of any mental disease or defect that would affect his competency to elect execution.
The order denying Rule 37 relief also pointed out that Robbins executed a detailed "order allowing waiver of counsel and invocation of constitutional right to proceed pro se" and ultimately rejected Robbins's argument that he was not competent to waive his right to counsel. Therefore, the issue of Robbins's mental status was addressed by the circuit court in its order, and Robbins's motion to reopen the Rule 37.5 hearing was not the sort of request for the court to rule on unresolved issues contemplated by the Watkins and Matthews decisions addressed above.
As noted above, the circuit court entered its order denying Robbins's motion for postconviction relief on January 19, 2010. Robbins did not file a notice of appeal until March 9, 2010. The February 17, 2010 motion did not extend the time for filing the notice of appeal. See McJames, supra. His notice of appeal was untimely, and his appeal must be dismissed. See id.
While we would ordinarily apply a heightened measure of scrutiny in a death penalty case, see Robbins VI, 353 Ark. at 561, 114 S.W.3d at 220 (stating that the "death penalty is a unique punishment that demands unique attention to procedural safeguards" and noting that we have "repeatedly set aside strict adherence to procedural rules in connection with postconviction relief out of concern for fairness in death-penalty cases"), the circuit court's order generally denying Rule 37.5 relief decreased Robbins's sentence from death to life imprisonment.
CORBIN, J., not participating.