Myers v. State

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NOS. 66FCR-09-1011, 66FCR-18-145 & 66FCR-18-395 ]. HONORABLE J. MICHAEL FITZHUGH, JUDGE

Marlon Tramain Myers, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Sr. Ass't Att'y Gen., for appellee.

BART F. VIRDEN, JUDGE

Appellant Marlon Tramain Myers appealed the Sebastian County Circuit Court's revocation of his probation, and we affirmed the revocation. See Myers v. State, 2020 Ark.App. 460, 608 S.W.3d 635. Now, Myers appeals the circuit court's denial of his Rule 37 ineffective-assistance-of-counsel petition. We affirm.

I. Relevant Facts

Myers pleaded guilty on October 28, 2009, to the crime of first-degree domestic battery and was sentenced to six years' imprisonment in the Arkansas Department of Correction (ADC) followed by fourteen years' suspended imposition of sentence. Additionally, he was ordered to pay fines, fees, and costs.

On October 26, 2013, Myers was arrested on new criminal charges including driving while intoxicated, careless driving, driving while license suspended, and refusal to submit to chemical testing. The State filed a petition to revoke, and in December, the circuit court revoked Myers's suspended sentence. He was sentenced to four years' imprisonment in the ADC plus an additional ten years' suspended imposition of sentence. In January 2015, Myers was released.

On March 11, 2018, Myers was charged with failure to appear, to which he pleaded guilty, and he entered a plea of no contest to the new charge of aggravated assault on a family member. Myers was sentenced to two years' imprisonment in the ADC with an additional four years' suspended imposition of sentence to run concurrently with his existing sentences, and he was ordered to have no contact with Shameer Flanigan. Myers was ordered to pay court costs. In July 2018, Myers was released from the ADC.

In April 2019, the State filed a petition to revoke Myers's probation alleging that Myers had violated the no-contact order and failed to pay fines. On August 15, Myers filed a motion to dismiss the petition to revoke arguing that the required hearing within sixty days of filing the petition had not occurred, and he should be released. The circuit court held a hearing on the matter the next day. Myers testified that he had been arrested on May 25, 2019, on the petition to revoke warrant and other misdemeanor charges, and his attorney advised him to refuse the State's offer regarding the misdemeanor charges until he went to trial on the petition to revoke. Myers explained that he had been incarcerated for over sixty days without a hearing on the petition to revoke; thus, the petition should be dismissed. The

circuit court denied the motion, finding that Myers was in jail for the district court charges as well as the petition to revoke; therefore, the sixty-day period did not begin until he was no longer being held on the district court charges.

Immediately after the hearing on the motion to dismiss, the circuit court addressed the petition to revoke. The State entered a payment ledger into evidence showing that Myers was $815 in arrears on fines, fees, and costs. The only witness, Officer Michael Coder of the Fort Smith Police Department, testified that in January, he was dispatched to investigate a possible stabbing. When Coder arrived at the scene, he found Myers receiving medical attention for neck and back wounds, and Myers stated that Shameer Flanigan had stabbed him.

The circuit court revoked Myers's probation, finding that the State had proved he violated the terms of his suspended sentence to pay fines, fees, and costs as ordered and to have no contact with Shameer Flanigan. Myers was sentenced to ten years' imprisonment in the ADC followed by an additional four years' suspended imposition of sentence. As stated above, our court affirmed the circuit court's revocation. See Myers, supra.

On December 8, 2020, Myers filed a Rule 37 petition claiming ineffective assistance of counsel. See Ark. R. Crim. P. 37.1. Myers's petition focused on the motion to dismiss the revocation petition that his attorney filed at his insistence and was denied by the circuit court. Myers contended that the district court attorney representing him on the new criminal charges advised him to refuse the State's plea offer on the pending charges stemming from his May 2019 arrest because his acceptance could be used against him at the hearing on the

petition to revoke. Myers asserted that counsel told him that "they have sixty days from the date of arrest to have a petition to revoke hearing by law," and he should accept the plea after that. Myers's hearing on the new charges was set for August 14, and his revocation hearing was scheduled for August 15. On July 22, Myers sent counsel representing him on the petition to revoke, Nancy Pryor, a letter requesting that she file a motion to dismiss. Myers explained that pursuant to Ark. Code Ann. § 5-4-310(b), the court was required to hold a hearing on the petition to revoke within sixty days and that the hearing was set after the sixty-day deadline (which was July 24).^[1] On August 12, counsel responded by email, explaining that

[t]he misdemeanor charges in city court that you have, including the criminal mischief charge, are NOT part of the PTR and