ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JANUARY 9, 2003

LARRY LECLERE

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-1276

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 97-1292, HONORABLE MARION HUMPHREY, JUDGE

AFFIRMED

Appellant was convicted of attempted rape, burglary, and terroristic threatening in the first degree and sentenced to fifty-six years' imprisonment. On direct appeal, appellant claimed that the trial court erred by excluding from the speedy-trial calculation the period from March 16, 1998 to July 1, 1998. The Arkansas Court of Appeals agreed that appellant's right to a speedy trial had been violated and reversed and dismissed his convictions. LeClere v State, CA CR 99-294 (Ark. App. Jan. 26, 2000) ("LeClere I"). In LeClere I, the court of appeals rejected the State's argument that appellant's speedy-trial claim was barred because appellate counsel failed to produce the record of a hearing held on appellant's motion to dismiss, stating that it could not "conclude that a hearing was held." In making this determination, the court of appeals relied on counsel's assertion that no hearing had been held.

After the opinion was issued, the State filed a motion to supplement the record and petitionedthe court for rehearing, asserting that the decision of the court of appeals was based on a material mistake of fact when it concluded that a hearing had not been held. On rehearing, the court of appeals granted the State's petition and issued a substituted opinion affirming appellant's convictions. See LeClere v. State, CA CR 99-294 (Ark. App. May 10, 2000) ("LeClere II"). The court of appeals refused to address the merits of appellant's speedy-trial claim because counsel failed to abstract the hearing held on appellant's motion to dismiss.

Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37, alleging that he received ineffective assistance of appellate counsel when counsel failed to abstract the hearing. According to appellant, the fact that he originally prevailed in having his convictions dismissed on speedy-trial grounds and then "had his dismissal taken away from him by something that had nothing to do with the merits of the claim conclusively shows that appellant is entitled to post-conviction relief." The circuit court conducted a hearing, and appellant's petition was denied. From that order comes this appeal.

The Supreme Court enunciated the standard for assessing the effectiveness of counsel in Strickland v. Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show 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 defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant

makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687. Thus, a defendant must first show that counsel's performance "fell below an objective standard of reasonableness," id. at 688, and second, that the errors "actually had an adverse effecton the defense." Id. at 693.

In reviewing a denial of relief under Rule 37, we must indulge in a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, appellant must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id.

Ineffective assistance of counsel cannot be established by a mere showing of error by counsel. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (1997) (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). We must consider the totality of the evidence before the factfinder, and we will not reverse the denial of postconviction relief unless the lower court's findings are clearly against the preponderance of the evidence. Noel, supra at 38, 26 S.W.3d at 125.

It appears that counsel's performance was deficient; however, in order to prevail on a claim of ineffective assistance, appellant must also show prejudice. This can be done by showing that the speedy-trial claim would have been sustained on appeal had counsel not procedurally defaulted the claim. However, appellant has failed to make such a showing.

Appellant argues that the initial decision of the court of appeals sustaining his speedy-trial claim proves that he was prejudiced and that this court is bound by that decision as the law of the case. Appellant is incorrect. The doctrine of the "law of the case" does not support appellant's claim because this doctrine only applies if there are no material changes in the facts from the first appeal to the next. See Wilson v. Wilson, 301 Ark. 80, 82, 781 S.W.2d 487, 488 (1989). However, there was a material change-the existence of the transcript of the hearing on the motion to dismiss,which was not available to the court of appeals when it rendered its initial decision. See LeClere II, supra. Moreover, this doctrine does not apply because the January 26, 2000 opinion was substituted with the May 10, 2000 opinion; therefore, the original opinion was no longer in effect.

In order to determine whether appellant suffered prejudice as a result of counsel's performance, we must examine the merits of the speedy-trial claim. Appellant was arrested no later than September 8, 1996. Appellant was given trial dates of September 4, 1997; December 16, 1997; July 1, 1998; July 7, 1998; July 14, 1998; July 28, 1998; July 30, 1998; and August 17, 1998. However, he either failed to appear for trial, turned down the offered date, or requested a continuance. He requested a mental evaluation on November 17, 1997, which was granted. After the trial court ordered the examination, it scheduled various court dates for a report. On March 16, 1998, a deputy prosecutor informed the court that, although the report itself was not yet available, appellant had been found competent. The court then set appellant's trial for July 1, 1998. On July 31, 1998, appellant moved to dismiss the charges for violation of the speedy-trial rule. A hearing was held on August 11, 1998, and the motion was denied. Appellant then filed a petition for writ of prohibition with this court, which we denied without prejudice on August 12, 1998. Appellant was found guilty on August 18, 1998.

The period of time between November 17, 1997 and March 16, 1998 is excludable from the speedy-trial calculation. See Ark. R. Crim. P. 28.3(a); Morgan v. State, 333 Ark. 294, 299, 971 S.W.2d 219, 222 (1998). However, appellant and the State disagree on whether the 106 days between the acceptance of the examination findings on March 16, 1998 and the trial date of July 1, 1998 should also be excluded.

When denying appellant's motion to dismiss, the trial court ruled that this period was excludable for purposes of speedy-trial calculation. The court noted that a trial date had been setfor appellant before he asked for the mental evaluation. Moreover, it saw appellant's request for the evaluation as a request for a continuance. According to the trial judge:

In my view, that is a request for a continuance. You know, it's a request from that date until it's reset and at the time the report came back it was set for a date certain and I think it was set at that point outside of the [speedy-trial period], but I think that that should be tolled because it was a Defendant's request.

The trial court concurred with this reasoning in denying appellant's Rule 37 petition.

At the time of appellant's trial, Ark. R. Crim. P. 28.3(a) excluded from the speedy-trial time "[t]he period of delay resulting from other proceedings concerning the ··²SDU_2²····²SDU_2²··defendant, including but not limited to an examination and hearing on the competency of the defendant." As mentioned, when appellant requested the mental evaluation, his case was already set for trial; therefore, granting his request caused a delay. Upon learning of the results of the evaluation, the court immediately set a new trial date. Excluding the period of time from when the results were made known until the new trial date was set was done in accordance with Rule 28.3(a).

We have consistently held that in cases where there is an excludable delay, the excludable period ends on the date of the setting of a new trial date. See Osborn v. State, 340 Ark. 444, 446, 11 S.W.3d 528, 529-30 (2000). At issue in Osborn was whether 118 days were properly excluded by the trial court, thereby negating any speedy-trial violation. After several requests for continuances were granted, Osborn's trial was set for October 17, 1997. He failed to appear on that date and was later arrested in Colorado and returned to Arkansas on December 4, 1997. Osborn claimed that his trial should have been set within 18 days after his return from Colorado to comply with speedy-trial requirements. We held that "[t]he duration of a defendant's unavailability is clearly an excludable period for speedy-trial purposes." Id. at 446, 11 S.W.3d at 530. In holding that setting Osborn's trial 118 days after his return did not violate his right to a speedy trial, weconcluded:

[Osborn] was not entitled to a trial within 18 days, as he now argues. That would have had the effect of disrupting the trial court's entire docket. What the trial court did, upon Osborn's arrest and return to this state, was to set the trial down for the next available trial date. Osborn was entitled to nothing more ··²SDU_8²····²SDU_8²··under our rules.

Id. at 447, 11 S.W.3d at 530.

In Strickland v. State, 331 Ark. 402, 962 S.W.2d 769 (1998), the prosecution requested a continuance of the trial date because of a witness' unavailability. We held that the excluded period ended on the next trial date setting. "The fact that the case was not reset for trial sooner was a matter for the trial court to decide in fixing its docket." Id. at 406-07, 962 S.W.2d at 771-73. In accordance with these holdings, the trial court in the present case correctly concluded that the excluded period due to the mental evaluation ran until the court reset appellant's trial date.

Finally, in Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998), we held that the period from the date the mental evaluation was ordered until the filing of the report was properly excluded for purposes of speedy-trial calculation. Although in Morgan, we were not faced with the exact issue as that presented in the present case, nothing in the opinion suggests that the excluded period of time cannot continue to run until the setting of the next trial date. Moreover, Rule 28.3(a) does not require that the excludable period due to a mental evaluation end automatically upon the receipt of a report. To rule otherwise, would encourage defendants to wait until the eve of the speedy-trial period to move for a mental evaluation and demand a trial within days of the receipt of the report if found competent, thereby causing scheduling difficulties.

Because appellant has not shown that his speedy-trial claim would have been sustained on appeal had counsel not procedurally defaulted the claim, he has failed to establish the prejudice prong of Strickland. Therefore, appellant's claim of ineffective assistance of counsel must fail. Accordingly, we affirm the trial court's denial of postconviction relief.

Affirmed.