How Do I Get Relief from A Conviction Due to the lawyer Doing a Poor Job on My Case?

Full question:

If someone is a first time offender and have a aggravated robbery charge, and the attorney didn't do anything to defend that person and offer that person 15 years with 5 to serve and 10 suspended, but the get in front of the judge and change everything and tell his client that if he she don't take the 10 years they would get 40-life. what can be done about that? when he did't go and question anyone that was involved in the robbery, he didn't show up in two court appearances. HELP ME PLEASE!

• Category: Courts
• Subcategory: Attorneys
• Date: 04/07/2025
• State: Arkansas

Answer:

A claim of ineffective assistance of counsel is typically made as part of a motion to appeal or petition for a writ of habeas corpus. Arguments upon appeal are made mainly through written briefs, which present the questions on appeal and cite the legal authorities and arguments in support of each party's position.

Arkansas Rule of Criminal Procedure 37.1 provides postconviction relief for constitutional violations and other collateral attacks upon a conviction, including ineffective assistance of counsel. The rule is accessible to a "petitioner in custody under sentence of a circuit court." When a convicted defendant complains of ineffective assistance of counsel, he must show first that counsel's performance was deficient through a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Additionally, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. The foregoing does not constitute legal advice. We are prohibited from giving legal advivce, as this servivce provides information of a general legal nature.

We can assist you with searching to locate forms or we can draft add forms you may need to our database. However, we cannot advise you to use one particular form over another that address the same matter. We can show you what is available. You can take a look at the forms below and see if they fit your need. If they do not, let me know and we may be able to add a form for your need. You may order a form or package by phone by calling Toll Free: 1-(877) 389-0141 - 8:30-5:00 Central Time Zone Monday – Friday.

For further discussion, please see:

https://courts.arkansas.gov/unpublished/2007a/20070215/cr07-040.pdf

http://otd.oyez.org/topics/ineffective+assistance+of+counsel?sort=asc&order=Appealed+From

http://www.supremelaw.org/cc/wallens/dismiss.htm

http://www.fpd-ohs.org/pv_13.htm

Please see the following AR court rules:

Rule 37.1. Scope of remedy.

(a) A petitioner in custody under sentence of a circuit court claiming a
right to be released, or to have a new trial, or to have the original
sentence modified on the ground:

(i) that the sentence was imposed in violation of the Constitution and
laws of the United States or this state; or

(ii) that the court imposing the sentence was without jurisdiction to do
so; or

(iii) that the sentence was in excess of the maximum sentence authorized
by law; or

(iv) that the sentence is otherwise subject to collateral attack;

may file a petition in the court that imposed the sentence, praying that
the sentence be vacated or corrected.

(b) The petition shall state in concise, nonrepetitive, factually
specific language, the grounds upon which it is based. The petition,
whether handwritten or typed, shall be clearly legible, and shall not
exceed ten pages of thirty lines per page and fifteen words per line,
with left and right margins of at least one and one-half inches and upper
and lower margins of at least two inches. The circuit court or appellate
court may dismiss any petition that fails to comply with this
subsection.

(c) The petition shall be accompanied by the petitioner's affidavit,
sworn to before a notary or other officer authorized by law to administer
oaths, in substantially the following form:

AFFIDAVIT

The petitioner states under oath that (he) (she) has read the foregoing
petition for postconviction relief and that the facts stated in the
petition are true, correct, and complete to the best of petitioner's
knowledge and belief.

_____
Petitioner's signature

Subscribed and sworn to before me the undersigned officer this _____ day
of _____, 20__.

_____
Notary or other officer

(d) The circuit clerk shall not accept for filing any petition that fails
to comply with subsection (c) of this rule. The circuit court or any
appellate court shall dismiss any petition that fails to comply with
subsection (c) of this rule.

(e) In addition to filing the petition with the clerk of the court, the
petitioner shall (I) send a letter to the judge of the circuit court that
imposed the sentence notifying the judge that the petition has been filed
and (ii) file with the clerk a copy of the letter notifying the judge
that the petition has been filed. The letter to the judge shall enclose
all copies of pleadings and documents relating to the petition and shall
reflect service on the prosecuting attorney. Filings pursuant to this
subsection (e) shall be used solely for purposes of Administrative Order
No. 3, and failure to comply with this subsection (e) shall not be
grounds for dismissing the petition.

Rule 37.2. Commencement of proceedings; pleadings.

(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.

(b) All grounds for relief available to a petitioner under this rule must
be raised in his or her original petition unless the petition was denied
without prejudice. Any ground not so raised or any ground finally
adjudicated or intelligently and understandingly waived in the
proceedings which resulted in the conviction or sentence, or in any other
proceedings that the petitioner may have taken to secure relief from his
or her conviction or sentence, may not be the basis for a subsequent
petition. All grounds for post-conviction relief from a sentence imposed
by a circuit court, including claims that a sentence is illegal or was
illegally imposed, must be raised in a petition under this rule.

(c) If a conviction was obtained on a plea of guilty, or the petitioner
was found guilty at trial and did not appeal the judgment of conviction,
a petition claiming relief under this rule must be filed in the
appropriate circuit court within ninety (90) days of the date of entry of
judgment. If the judgment was not entered of record within ten (10) days
of the date sentence was pronounced, a petition under this rule must be
filed within ninety (90) days of the date sentence was pronounced.

If an appeal was taken of the judgment of conviction, a petition
claiming relief under this rule must be filed in the circuit court within
sixty (60) days of the date the mandate was issued by the appellate
court. In the event an appeal was dismissed, the petition must be filed
in the appropriate circuit court within sixty (60) days of the date the
appeal was dismissed. If the appellate court affirms the conviction but
reverses the sentence, the petition must be filed within sixty (60) days
of a mandate following an appeal taken after resentencing. If no appeal
is taken after resentencing, then the petition must be filed with the
appropriate circuit court within ninety (90) days of the entry of the
judgment.

(d) The decision of the court in any proceeding under this rule shall
be final when the judgment is rendered. No petition for rehearing shall
be considered.

(e) Before the court acts upon a petition filed under this rule, the
petition may be amended with leave of the court.

(f) Within twenty (20) days after service of a petition under this
rule, the state may file a response thereto with evidence of service on
opposing counsel or on the petitioner if he or she is acting pro se.

Rule 37.3. Nature of proceedings; summary disposition; appointment of
counsel; evidentiary hearings; presence of petitioner.

(a) If the petition and the files and records of the case conclusively
show that the petitioner is entitled to no relief, the trial court shall
make written findings to that effect, specifying any parts of the files,
or records that are relied upon to sustain the court's findings.

(b) If the original petition, or a motion for appointment of counsel
should allege that the petitioner is unable to pay the cost of the
proceedings and to employ counsel, and if the court is satisfied that the
allegation is true, the court may at its discretion appoint counsel for
the petitioner for any hearing held in the circuit court. If a petition
on which the petitioner was represented by counsel is denied, counsel
shall continue to represent the petitioner for an appeal to the Supreme
Court, unless relieved as counsel by the circuit court or the Supreme
Court. If no hearing was held or the petitioner proceeded pro se at the
hearing, the circuit court may at its discretion appoint counsel for an
appeal upon proper motion by the petitioner.

(c) When a petition is filed in the circuit court and the court does
not dispose of the petition under subsection (a) hereof, the court shall
cause notice of the filing thereof to be served on the prosecuting
attorney and the petitioner's counsel of record at the trial court
level; and on the petition the court shall grant prompt hearing with
proceedings reported. At any hearing ordered by the court the petitioner
shall be present, unless the petitioner waives the right to appear or the
trial court determines that the issues to be addressed at the hearing can
be fairly resolved without the presence of the petitioner or the trial
court directs that the testimony of petitioner be taken by deposition.
The rules of evidence shall apply at any hearing. The court shall
determine the issues and make written findings of fact and conclusions of
law with respect thereto.

(d) When an order is rendered on a petition filed under this rule, the
circuit court shall promptly mail a copy of the order to the petitioner.