Collins v. State
Collins v. State
Opinion of the Court
This is a pro se appeal from an order of the trial court denying appellant Khalin Collins's pro se petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2013).
On appeal, Collins raises two of his original claims of ineffective assistance of counsel: (1) that trial counsel failed to present testimony from a known witness and other supporting evidence establishing an alibi on the date the crimes were committed; and (2) that counsel failed to file a motion to dismiss on the ground that Collins's right to speedy trial had been violated.
Rule 37.3 of the Arkansas Rules of Criminal Procedure (2013) provides that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief. Sanders v. State ,
Sufficient written findings by the trial court are required to demonstrate that Collins was entitled to no relief. Because the record before this court does not conclusively show that Collins's ineffective-assistance-of-counsel claims are without merit, we reverse and remand for compliance with Rule 37.3 and direct the trial court to conduct an evidentiary hearing and to supplement the record.
As an initial matter, we address the State's contention that Collins's Rule 37.1 petition was untimely filed. In February 2013, a jury convicted Collins of one count of commercial burglary, one count of theft of property over $2,500, one count of Class Y felony arson, and two counts of Class C felony arson. The Arkansas Court of Appeals affirmed three of Collins's convictions but reversed the conviction for Class Y felony arson. Collins v. State ,
Our standard of review requires that we assess counsel's effectiveness under the two-prong standard set forth by the United States Supreme Court in Strickland v. Washington ,
I. Failure to Call an Alibi Witness
When a petitioner alleges ineffective assistance of counsel concerning the *868failure to call witnesses, it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence.
In the petition filed below, Collins named a specific witness who resided in Panama City, Florida, and who allegedly would verify that Collins was working for a construction company in Florida when the crimes for which he was convicted occurred. In support of his claim, Collins points to a motion for continuance filed by his first attorney, Robert Jeffrey. A review of the record on appeal
This court reviews the trial court's decision on Rule 37.1 petitions for clear error. Russell v. State ,
Because Collins specified the alibi evidence his trial counsel allegedly failed to develop and provided the name of a specific witness, as well as the anticipated testimony of that witness, it cannot be determined from the face of these allegations that they are clearly without merit. Johnson ,
II. Ineffective Assistance of Counsel Based on Failure to Move for Dismissal Based on a Violation of Right to Speedy Trial
With respect to his speedy-trial claim, Collins alleged below that he had been arrested in Panama City, Florida, on August 24, 2010, and brought to trial on February 13, 2013. In his argument on appeal, Collins concedes that the speedy-trial time began to run on September 2, 2010, and the direct-appeal record demonstrates that Collins was arrested on September 2, 2010. The time that elapsed between September 2, 2010, and February 13, 2013, totaled 895 days. In his petition, Collins alleged that his trial was conducted *869more than twelve months after his arrest and that the only continuance filed on his behalf was granted on May 2, 2012.
As explained above, the trial court made a summary finding that Collins was tried within the required speedy-trial time frame based on a review of the docket sheet. However, the trial court failed to set forth the dates that would have been excludable under the speedy-trial rule and did not include in the postconviction record the docket sheet upon which it had based its conclusion. The docket sheet that was included in the direct-appeal record is deficient in that the docket sheet contained therein is missing those parts of the docket that recorded the events between July 2012 and the date Collins's trial began in February 2013, leaving over 200 days of delay that cannot be conclusively excluded from the speedy-trial calculation. The last order setting a trial date that is contained in the record on direct appeal was dated by the trial court as April 2, 2012, but it was not filed until July 5, 2012. This final order, filed-marked July 5, 2012, set Collins's trial for the "next scheduled trial date" and did not specify the date.
When no hearing is held on a Rule 37.1 petition, the trial court has an obligation to provide written findings that conclusively show that the petitioner is entitled to no relief. Turner ,
Sufficient written findings by the trial court are required to demonstrate to this court that Collins was entitled to no relief on his speedy-trial-ineffective-assistance claim. Turner ,
Reversed and remanded.
This appeal has remained on the docket of this court rather than being transferred to the court of appeals because this court had previously granted Collins's motion for rule on clerk by per curiam order without written opinion entered September 22, 2016; and on March 30, 2017, this court granted Collins's motion to file a belated brief.
Arguments made to the trial court but not included in the arguments on appeal are considered abandoned. Brown v. State ,
We may take judicial notice of the record from the direct appeal without need to supplement the record. Anderson v. State ,
Contrary to the above-cited allegation, the docket sheet that is part of the direct-appeal record demonstrates that Collins and his first attorney requested numerous continuances between September 2, 2010-the date of his arrest-and April 2012.
Reference
- Full Case Name
- Khalin COLLINS v. STATE of Arkansas
- Cited By
- 1 case
- Status
- Published