Nickels v. State

2016 Ark. 11

• Court: Supreme Court of Arkansas
• Decided: January 14, 2016
• Docket: CR-15-682
• Status: Published

Opinion

Cite as 2016 Ark. 11

SUPREME COURT OF ARKANSAS. No. CR-15-682

Opinion Delivered January 14, 2016 GREGORY W. NICKELS APPELLANT PRO SE MOTIONS TO CORRECT AND V. RESTORE RECORDS AND FOR APPOINTMENT OF COUNSEL STATE OF ARKANSAS [FAULKNER COUNTY CIRCUIT COURT, APPELLEE NOS. 23CR-98-753; 23CR-00-47] HONORABLE CHARLES E. CLAWSON, JR., JUDGE

APPEAL DISMISSED; MOTIONS MOOT.

PER CURIAM

In 2001, appellant Gregory W. Nickels was convicted of a number of drug-related

charges in two separate proceedings in the Faulkner County Circuit Court. After two jury

trials, the judgments in the two cases reflect that the juries imposed consecutive sentences of

300 months’ and 348 months’ imprisonment in the Arkansas Department of Correction. No

appeal was taken from the judgments.

In 2014, Nickels filed in the trial court a petition challenging the two judgments that

was entitled “Writ of Mandamus and Declaratory Judgment with Certiorari to The Supreme

Court of the State of Arkansas.” He later filed a “Motion to Compel Production and Delivery

of Docket Activity” in which he sought to receive certain documents in the proceedings. On

April 30, 2015, the trial court entered an order that denied the motion and the petition on the

basis that Nickels should pursue his remedy in this court. Nickels lodged an appeal in this Cite as 2016 Ark. 11

court, and he has filed two motions in which he seeks to correct the record and appointment

of counsel. We dismiss the appeal, and the motions are therefore moot.1

Although the petition was couched in terms of extraordinary relief, Nickels sought

postconviction relief from his convictions. See State v. Wilmoth, 369 Ark. 346, 255 S.W.3d 419

(2007). This court has consistently held that an appeal from the denial of postconviction relief

will not be permitted to go forward where it is clear that the appellant could not prevail.

Munson v. Ark. Dep’t of Corr. Sex Offender Screening & Risk Assessment, 369 Ark. 290, 253 S.W.3d

901 (2007); see also Hood v. State, 2015 Ark. 400 (per curiam) (declining to consider the

petitioner’s excuse for procedural default where it was clear from the record that the petitioner

could not prevail if an appeal of postconviction relief were allowed to proceed).

The relief that Nickels requested was permission to proceed with a direct appeal of the

two judgments of conviction from 2001. He alleged various trial errors, his actual innocence,

and ineffective assistance of counsel. The trial court correctly concluded that it could not

consider a request to proceed with a belated appeal. Under Arkansas Rule of Appellate

Procedure–Criminal 2(e) (2015), only this court may consider a timely application for belated

appeal of a judgment of conviction.

Nickels alleged ineffective assistance of counsel as a basis for relief. Ineffective

assistance is a claim that would be cognizable under Arkansas Rule of Criminal Procedure 37.1

1In his motion to correct the record, Nickels seeks to have portions of the record revised, omitted, or supplemented. The relevant portions of the record have no bearing on our disposition. We also note that the parties have now fully briefed the matter. In his brief, Nickels contends that there was error in the trial court’s rulings by reasserting his position in the petition filed below. 2 Cite as 2016 Ark. 11

(2005). This court has held that a petition for postconviction relief attacking a judgment,

regardless of the label placed on it by the petitioner, is considered pursuant to Rule 37.

Wilmoth, 369 Ark. 346, 255 S.W.3d 419; see also Murphy v. State, 2013 Ark. 243 (per curiam)

(holding that trial court was permitted to treat claims raised that were cognizable under Rule

37 as if raised in a Rule 37.1 petition).

Even if the court had treated the petition as one under Rule 37, the petition would not

have been timely. Under Criminal Procedure Rule 37.2(c) (2010), Nickels was required to file

his Rule 37.1 petition within ninety days of the date of entry of a judgment not appealed. In

this case, the judgments were both entered in 2001, and Nickels filed his petition for

postconviction relief years later, in 2014. The petition that Nickels filed therefore was not a

petition on which the trial court could grant relief under Rule 37.