Lowe v. State

2012 Ark. 185, 423 S.W.3d 6, 2012 Ark. LEXIS 199
CourtSupreme Court of Arkansas
DecidedApril 26, 2012
DocketNo. CR 11-863
StatusPublished
Cited by31 cases

This text of 2012 Ark. 185 (Lowe v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lowe v. State, 2012 Ark. 185, 423 S.W.3d 6, 2012 Ark. LEXIS 199 (Ark. 2012).

Opinion

PER CURIAM.

| j Appellant James Robert Lowe lodged an appeal in this court from the denial of his petition for postconviction relief from a 2009 conviction for possession of drug paraphernalia with intent to manufacture methamphetamine. Appellant filed a petition for writ of certiorari to complete the record. In that petition, he seeks to bring up certain items to be included in the record. He has also filed a motion for appointment of counsel. We deny the petition, and we dismiss the appeal. Because we dismiss the appeal, the motion is moot.

A jury found appellant guilty of the possession-of-drug-paraphernalia charge and sentenced him to 360 months’ imprisonment. The Arkansas Court of Appeals affirmed the judgment. Lowe v. State, 2011 Ark. App. 68, 2011 WL 386982. After the trial court denied appellant’s timely petition under Arkansas Rule of Criminal Procedure 37.1 (2011) without a hearing, appellant lodged the appeal at hand.

| {.A brief summary of the evidence presented at appellant’s trial is helpful in understanding the issues presented. Wayne Barnett, a narcotics detective with the Fort Smith Police Department, met with a confidential informant who indicated that appellant was manufacturing, or wanted to manufacture, methamphetamine. Barnett wired the informant with a transmitter and provided money for the purchase of materials to manufacture the methamphetamine. Barnett observed as the informant went to a parking lot and picked up appellant and his girlfriend. Barnett continued his surveillance as the three then drove to different stores looking for, and eventually purchasing, the necessary materials to manufacture the drug. Once all the required materials had been gathered, Barnett had the vehicle stopped, and appellant was arrested.

Appellant requests in his petition for writ of certiorari that the record on appeal be supplemented with the following items: a transcript of certain conversations that were recorded by a “transponder” that the confidential informant wore, receipts reflecting that the items of paraphernalia had been purchased, the transcripts of certain phone conversations between appellant and the confidential informant that Barnett testified had been recorded, the police report filed by Barnett and another detective, and testimony by Barnett at a proceeding to revoke the suspended imposition of a sentence on an unrelated charge. The State contends that these items that appellant would have included in this record were not before the court below. As to some items, that is clearly so; there was no admission of any of the referenced recordings of any conversations between the informant and appellant. As with the recordings, the police report may have been referenced at appellant’s trial, but appellant concedes that it was not admitted |3into the record. This court has long and consistently held that it cannot, in the exercise of its appellate jurisdiction, receive testimony or consider anything outside of the record below. Guy v. State, 2011 Ark. 305, 2011 WL 3136699 (per curiam).

The remainder of the items are simply not pertinent to this court’s review or are already contained within public records of which this court may take judicial notice. The receipts were admitted into evidence at appellant’s trial. The record of appellant’s trial was filed with this court, and that record is considered by this court without need to supplement the record. See Drymon v. State, 327 Ark. 375, 938 S.W.2d 825 (1997) (per curiam). Only a photograph of the bag of receipts was attached to the record in appellant’s direct appeal, but the details of the receipts are not necessary for this court to dispose of the instant appeal, as explained more fully below.

The testimony from the revocation hearing is also contained in a record of that proceeding. This court does not generally take judicial notice of the record in other cases, because it cannot be ascertained that the evidence would be the same in both cases. Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783. As was the case in Drymon, however, the circumstances here are such that we may take notice of the contents of that record, to the extent necessary for our review. Appellant bases some of his arguments on the fact that the evidence in the revocation proceeding was presented to the same judge that presided over appellant’s trial in this case. Because we may, if necessary, take notice of that record, appellant has not demonstrated a need to supplement the record, and his petition is therefore denied.

Our review of the record in considering appellant’s petition for writ of certio-rari has 14made it clear that appellant cannot prevail on appeal, and we therefore dismiss the appeal. An appeal from an order that denied a petition for a postcon-viction remedy will not be permitted to go forward where it is clear that the appellant could not prevail. Watson v. State, 2012 Ark. 27, 2012 WL 234634 (per curiam); Riddell v. State, 2012 Ark. 11, 2012 WL 90022 (per curiam); Hendrix v. State, 2012 Ark. 10, 2012 WL 90020 (per curiam); Croft v. State, 2010 Ark. 83, 2010 WL 569744 (per curiam); Crain v. State, 2009 Ark. 512, 2009 WL 3400645 (per curiam).

Both parties have now filed their briefs. In addition to challenging the trial court’s rulings on his claims, appellant also challenges the sufficiency of the findings of fact concerning some of those rulings and the trial court’s failure to rule on certain motions. The allegations in the petition, however, conclusively show that appellant was not entitled to relief on the Rule 37.1 petition, regardless of the sufficiency of the findings in the order, and the trial court’s failure to rule on the motions, as petitioner asserts, would not change that result. Appellant’s arguments on appeal could not prevail.

Appellant asserts in his brief that the trial court failed to rule on his motions for production of evidence, a second motion to amend, and a motion to modify the order. A petitioner is not entitled to discovery to pursue a Rule 37.1 claim for relief. Clarks v. State, 2011 Ark. 296, 2011 WL 3136042 (per curiam). The trial court effectively denied appellant’s second motion to amend by issuing its order denying relief without addressing those additional claims. Moreover, appellant filed the second motion to amend the Rule 37.1 petition only a few days prior to the date that the trial court entered its order on the petition. Under Arkansas Rule of Criminal Procedure 37.2(e), the trial court has discretion to grant leave to amend. Under the circumstances here— that is, where the court had previously granted one motion to amend and |fithe petitioner filed a second motion to add additional claims only a short time before the court entered its order — the court did not abuse its discretion to deny leave to amend the petition further. See Rodriguez v. State, 2010 Ark. 78, 2010 WL 569750 (per curiam).

Arkansas Rule of Criminal Procedure 37.3 requires the trial court to provide written findings specifying the parts of the files or record relied upon to dismiss a Rule 37.1 petition without a hearing. See Ark. R.Crim. P. 37.3(a); Rackley v. State, 2010 Ark. 469, 2010 WL 4922390 (per curiam). This court will reverse if the trial court fails to make such findings, except in cases where it can be determined from the record that the petition is without merit or where the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted. Olivarez v. State, 2012 Ark.

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Bluebook (online)
2012 Ark. 185, 423 S.W.3d 6, 2012 Ark. LEXIS 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowe-v-state-ark-2012.