R AY THORNTON, Justice.
The State appeals the January 11, 2001, judgment of the Pulaski County Circuit Court, granting appellee, Timothy Wayne Hardin, a new trial on grounds of ineffective assistance of counsel pursuant to Ark. R. Crim. P. 37.2. The State contends that the trial court erred in granting Mr. Hardin a new trial because it did not find that counsel’s ineffective assistance was prejudicial to him. It appears that the trial court erroneously relied upon Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980), and found that ineffective assistance could be predicated upon a collective consideration of all the allegations. We disagree with the trial court’s interpretation and application of Neal, supra, and reverse and remand the case to the trial court for further action consistent with this opinion.
On November 16, 1999, a jury convicted Mr. Hardin of one count of rape, one count of residential burglary, and one count of misdemeanor theft of property. Mr. Hardin’s conviction was affirmed on direct appeal. Hardin v. State, CACR 99-604, 2000 WL 139258 (Ark. App. Feb. 2, 2000). Thereafter, Mr. Hardin filed a petition for postconviction relief pursuant to Rule 37, alleging that his attorney, Jeff Weber, had rendered ineffective assistance of counsel. In his petition, Mr. Hardin alleged that Mr. Weber was ineffective as counsel due to his (1) failure to investigate defenses, (2) failure to investigate defense witnesses, (3) failure to prepare Mr. Hardin to testify, and (4) failure to ask questions on cross-examination of the victim that Mr. Hardin requested him to ask.
The Rule 37 hearing began on November 3, 2000, and on January 11, 2001, the trial court entered an order granting Mr. Hardin a new trial. It is from this order that the State now brings this appeal. While the underlying case is criminal in nature, which suggests that Ark. R. App. P. — Crim. 3 should apply, we have recognized that Rule 37 proceedings are “civil in nature” and have recently decided appeals by the State from grants of postconviction relief. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999) (citing State v. Clemmons, 334 Ark. 440, 976 S.W.2d 923 (1998); State v. Herred, 332 Ark. 241, 964 S.W.2d 391 (1998); State v. Slocum, 332 Ark. 207, 964 S.W.2d 388 (1998)). Having determined that this appeal is properly before us, we turn to the merits of the case.
I Standard of Review
On appeal from a trial court’s ruhng on Ride 37 relief, we will not reverse the trial court’s decision granting or denying post-conviction relief unless it is clearly erroneous. Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001) (citing Dillard, supra). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Davis, supra (citing Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997)).
II. Ineffective Assistance of Counsel
We outlined the principles of law regarding postconviction challenges in Davis, supra,.where we stated:
For many years, Arkansas has allowed collateral attacks upon a final conviction and appeal by means of a postconviction challenge to determine whether a sentence was void because it violated fundamental rights guaranteed by the Constitutions or laws of Arkansas or the United States. The present rule for such a challenge is Ark. R. Crim P. 37, which provides the following grounds for a petition:
(a) that the sentence was imposed in violation of the Constitution or laws of the United States or this state; or
(b) that the court imposing the sentence was without jurisdiction to do so; or
(c) that the sentence was in excess of the maximum sentence authorized by law; or
(d) that the sentence is otherwise subject to collateral attack. . . .
Ark. R. Crim. P. 37.1. The most common ground for postconviction relief is the assertion that the petitioner was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Strickland v. Washington, 466 U.S. 668 (1984).
Davis, supra.
We also outlined the Strickland standard for assessing the effectiveness of trial counsel in Davis, supra:
[T]he petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. A court must indulge in a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.
Id. (quoting Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999)). In making a determination on a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000).
Upon examination of the trial court’s order, we conclude that there is error in the order that requires us to remand the case. In its order granting Mr. Hardin a new trial, the trial court reasoned:
In Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980) at 428, the Arkansas Supreme Court stated: “None of the specific allegations considered separately, if true, would justify vacation of the sentence . . . Still petitioner’s allegations, considered collectively, warrant our granting permission to petitioner to apply to the trial court for relief under Rule 37 on the basis of the specific allegations of ineffective assistance of counsel enumerated above. . . .”
Free access — add to your briefcase to read the full text and ask questions with AI
R AY THORNTON, Justice.
The State appeals the January 11, 2001, judgment of the Pulaski County Circuit Court, granting appellee, Timothy Wayne Hardin, a new trial on grounds of ineffective assistance of counsel pursuant to Ark. R. Crim. P. 37.2. The State contends that the trial court erred in granting Mr. Hardin a new trial because it did not find that counsel’s ineffective assistance was prejudicial to him. It appears that the trial court erroneously relied upon Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980), and found that ineffective assistance could be predicated upon a collective consideration of all the allegations. We disagree with the trial court’s interpretation and application of Neal, supra, and reverse and remand the case to the trial court for further action consistent with this opinion.
On November 16, 1999, a jury convicted Mr. Hardin of one count of rape, one count of residential burglary, and one count of misdemeanor theft of property. Mr. Hardin’s conviction was affirmed on direct appeal. Hardin v. State, CACR 99-604, 2000 WL 139258 (Ark. App. Feb. 2, 2000). Thereafter, Mr. Hardin filed a petition for postconviction relief pursuant to Rule 37, alleging that his attorney, Jeff Weber, had rendered ineffective assistance of counsel. In his petition, Mr. Hardin alleged that Mr. Weber was ineffective as counsel due to his (1) failure to investigate defenses, (2) failure to investigate defense witnesses, (3) failure to prepare Mr. Hardin to testify, and (4) failure to ask questions on cross-examination of the victim that Mr. Hardin requested him to ask.
The Rule 37 hearing began on November 3, 2000, and on January 11, 2001, the trial court entered an order granting Mr. Hardin a new trial. It is from this order that the State now brings this appeal. While the underlying case is criminal in nature, which suggests that Ark. R. App. P. — Crim. 3 should apply, we have recognized that Rule 37 proceedings are “civil in nature” and have recently decided appeals by the State from grants of postconviction relief. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999) (citing State v. Clemmons, 334 Ark. 440, 976 S.W.2d 923 (1998); State v. Herred, 332 Ark. 241, 964 S.W.2d 391 (1998); State v. Slocum, 332 Ark. 207, 964 S.W.2d 388 (1998)). Having determined that this appeal is properly before us, we turn to the merits of the case.
I Standard of Review
On appeal from a trial court’s ruhng on Ride 37 relief, we will not reverse the trial court’s decision granting or denying post-conviction relief unless it is clearly erroneous. Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001) (citing Dillard, supra). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Davis, supra (citing Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997)).
II. Ineffective Assistance of Counsel
We outlined the principles of law regarding postconviction challenges in Davis, supra,.where we stated:
For many years, Arkansas has allowed collateral attacks upon a final conviction and appeal by means of a postconviction challenge to determine whether a sentence was void because it violated fundamental rights guaranteed by the Constitutions or laws of Arkansas or the United States. The present rule for such a challenge is Ark. R. Crim P. 37, which provides the following grounds for a petition:
(a) that the sentence was imposed in violation of the Constitution or laws of the United States or this state; or
(b) that the court imposing the sentence was without jurisdiction to do so; or
(c) that the sentence was in excess of the maximum sentence authorized by law; or
(d) that the sentence is otherwise subject to collateral attack. . . .
Ark. R. Crim. P. 37.1. The most common ground for postconviction relief is the assertion that the petitioner was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Strickland v. Washington, 466 U.S. 668 (1984).
Davis, supra.
We also outlined the Strickland standard for assessing the effectiveness of trial counsel in Davis, supra:
[T]he petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. A court must indulge in a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.
Id. (quoting Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999)). In making a determination on a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000).
Upon examination of the trial court’s order, we conclude that there is error in the order that requires us to remand the case. In its order granting Mr. Hardin a new trial, the trial court reasoned:
In Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980) at 428, the Arkansas Supreme Court stated: “None of the specific allegations considered separately, if true, would justify vacation of the sentence . . . Still petitioner’s allegations, considered collectively, warrant our granting permission to petitioner to apply to the trial court for relief under Rule 37 on the basis of the specific allegations of ineffective assistance of counsel enumerated above. . . .”
This court is of the opinion that the seriousness of the Class Y felony charge required more investigation and research than what was done by counsel, thus, rendering his assistance ineffective pursuant to Rule 37.
The State argues that the trial court’s reliance on Neal, supra, is misplaced. We agree.
While the express language that the trial court recited in Neal, supra, seems to support the trial court’s finding that cumulative error can be used to support a finding of ineffective assistance of counsel, that conclusion is mistaken. First, we note that Neal, supra, was decided when the former Rule 37 was in effect, and the former Rule 37 required petitioners who had appealed their convictions to seek our permission to proceed in circuit court. See Ark. R. Crim. P. 37.2(a) (1990) (modified 1991) (“If the conviction in the original case was appealed to the Supreme Court or Court of Appeals, then no proceedings under this rule shall be entertained by the circuit court without prior permission of the Supreme Court.”); but see Ark. R. Crim P. 37.2(a) (“If the conviction in the original case was appealed to the Supreme Court or Court of Appeals, then no proceedings under this rule shall be entertained by the circuit court while the appeal is pending.”). Therefore, the pronouncement in Neal, supra, was merely a determination that the petitioner was entitled to proceed with a Rule 37 hearing, not a resolution of the ultimate issue of whether trial counsel was ineffective. Second, we note that while Neal, supra, seems to suggest a cumulative-error analysis in ineffective assistance of counsel challenges, we have squarely rejected the cumulative-error analysis on numerous occasions. E.g., Noel, supra (holding that we do not recognize cumulative error in allegations of ineffective assistance of counsel). We conclude that the trial court erred in resting its Strickland analysis upon a cumulation of allegations of ineffective assistance of counsel. The trial court’s rebanee on Neal, supra, is misplaced. Because the trial court erroneously relied on Neal, supra, what we do not know is whether the trial court would have found that one or more of the allegations of ineffective assistance of counsel, standing alone, showed that Mr. Weber made errors so serious that he was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment, and that the deficient performance prejudiced the defense sufficiently to undermine confidence in the outcome of the trial. See Davis, supra.
The State contends that the trial court erred in granting Mr. Hardin a new trial because it did not find that counsel’s ineffective assistance was prejudicial to him. The State argues that the trial court’s finding that counsel rendered ineffective assistance under Rule 37 was not adequate to show prejudice and that the failure to interview witnesses and other alleged deficiencies should be excused as trial strategy. From the record before us, and in light of the United States Supreme Court’s decision in Williams v. Taylor, 529 U.S. 362 (2000), as well as the trial court’s mistaken reliance upon cumulative error, we cannot say that the trial court was clearly erroneous on this point. We conclude that the case must be remanded to analyze the matter without giving consideration to cumulative error. Only when such an analysis is made will we be able to determine whether both prongs of Strickland have been met. Therefore, we remand the case for the trial court to make that determination.
Reversed and remanded.
Arnold, C.J., and Glaze and Imber, JJ., dissent.