John Britt v. State of Arkansas

Cite as 2022 Ark. App. 58
Elizabeth Perry ARKANSAS COURT OF APPEALS
I attest to the accuracy and DIVISION I
integrity of this document No. CR-21-9
2023.08.22 10:39:28 -05'00'
2023.003.20269
Opinion Delivered February 9, 2022

JOHN BRITT APPEAL FROM THE BENTON
APPELLANT COUNTY CIRCUIT COURT
[NO. 04CR-16-2178]
V.
HONORABLE BRAD KARREN,
JUDGE
STATE OF ARKANSAS
APPELLEE
REVERSED AND REMANDED

BART F. VIRDEN, Judge

A Benton County jury convicted appellant John Britt of rape, and he was sentenced

to forty years’ imprisonment. This court affirmed his conviction on direct appeal. Britt v.

State, 2019 Ark. App. 145, 573 S.W.3d 567. After the mandate was issued, Britt filed a

petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1. The trial court

convened what it referred to as “an oral argument” but ultimately denied Britt’s petition

without holding an evidentiary hearing. On appeal, Britt asserts that the trial court erred in

denying his claims that he received ineffective assistance from trial counsel. Britt also argues

that the trial court made several procedural errors, including denying his request for

additional time to file an amended petition, denying his motion for a continuance of the

oral argument along with another motion to file an amended petition, and denying his

request for an evidentiary hearing. We reverse and remand.
I. Procedural History

On January 30, 2017, the State filed charges against Britt for the rape of his teenage

daughter, G.B. Prior to trial, Britt filed a motion for a Daubert hearing to challenge the

admissibility of expert testimony regarding DNA evidence that was analyzed using Y-STR

testing as opposed to the more commonly known autosomal DNA testing. 1 At the Daubert

hearing, the defense presented the testimony of Mary Robinette, a retired DNA analyst

who had worked at the Arkansas State Crime Laboratory for seventeen years. The State did

not introduce expert testimony but cross-examined Robinette. Following the hearing, the

trial court ruled that expert testimony on Y-STR testing was admissible.

At trial, G.B. testified that Britt forced her to perform oral sex on him and later

engaged in vaginal intercourse with her. Byron Johncox, an officer with the Springdale

Police Department, investigated G.B.’s allegations of rape, gathered potential evidence from

the scene, and interviewed Britt. The State introduced testimony from two expert witnesses:

Ada LeDoux, a former forensics serologist, and Julie Butler, the DNA analyst who

performed Y-STR testing on G.B.’s vaginal swabs and a cutting from her pants. Butler

compared the profiles obtained from those items to a known profile obtained from Britt and

testified with respect to the resulting statistics. The defense did not present any expert

testimony but cross-examined both Butler and LeDoux. At the conclusion of the trial, the

jury convicted Britt of rape. During the sentencing phase, the defense introduced testimony

from Britt’s mother, his wife, and his stepbrother. As noted above, Britt’s conviction was

affirmed on direct appeal to this court. See Britt, supra.

1
Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993).

2
After our mandate was issued in March 2019, Britt timely filed a Rule 37 petition in

May alleging that he had received ineffective assistance because trial counsel failed to make

a proper Daubert challenge, failed to effectively cross-examine Butler, and failed to hire a

DNA expert to testify at trial for the defense. In the petition and a separate motion, Britt

requested an additional 120 days to amend the petition because recently retained counsel

had not had adequate time to prepare. The trial court granted the motion.

On September 14—two weeks before the amended petition was due—Britt filed

another motion to amend in which he sought an additional ninety days because his family

was attempting to obtain funds to hire a DNA expert to conduct an independent review of

the case. The trial court denied that motion, stating that it could not extend the time because

of jurisdictional constraints. On September 26, Britt filed his amended petition within 120

days adding claims that trial counsel had ineffectively cross-examined Johncox and G.B. and

had failed to present additional character witnesses during the sentencing phase.

In late November 2019, the trial court scheduled “an oral argument” on Britt’s Rule

37 petition for January 14, 2020, to determine whether an evidentiary hearing would be

necessary. One week before the oral argument, Britt requested a continuance because

Mehul Anjaria, the DNA expert who had since been hired by Britt’s family, needed

additional material for his review before he could render an opinion. Britt

contemporaneously filed another motion to amend in which he requested a ninety-day

extension to allow time for Anjaria to complete his review such that Britt could include the

expert’s opinion in his amended petition.

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At the oral argument, the trial court denied Britt’s motions filed January 7 for a

continuance and to amend his Rule 37 petition. The trial court pointed out that the oral

argument had been set more than a month earlier and that the State would not have

sufficient time to respond, citing the twenty-day response time under Ark. R. Crim. P.

37.2(f). In denying the motion to amend, the trial court ruled, in part, that Britt had failed

to provide a legitimate justification for filing an enlarged petition.

The trial court then stated that it would hear argument on Britt’s ineffective-

assistance-of-counsel claims. Counsel began by referring to Anjaria’s preliminary findings

but was interrupted by the trial court and instructed that only allegations raised in the

September 26 amended petition could be argued given that the other motions to amend

had been denied. The trial court stated that Britt could proffer Anjaria’s preliminary notes.

The trial court then heard oral argument on each of Britt’s claims and ruled from the bench

that it was denying relief without an evidentiary hearing. The trial court later entered an

order containing written findings of fact and conclusions of law.

II. Discussion

A. September 14 Motion to Amend

If an appeal is taken of a judgment of conviction, a petition for postconviction relief

must be filed within sixty days of the date the mandate is issued by the appellate court. Ark.

R. Crim. P. 37.2(c)(ii). Before the court acts on a Rule 37 petition, the petition may be

amended with leave of the court. Ark. R. Crim. P. 37.2(e). Our standard of review as to

the denial of leave to amend is abuse of discretion; we determine whether the trial court’s

decision was arbitrary or groundless. Adams v. State, 2013 Ark. 174, 427 S.W.3d 63.

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Britt filed a timely petition for postconviction relief following the issuance of our

mandate. After being granted a 120-day extension within which to amend his petition, Britt

filed another motion to file an amended petition on September 14, 2019, which was denied

by an order entered September 24. On January 14, 2020, the trial court pronounced from

the bench that Britt’s petition for postconviction relief was denied, but the trial court did

not enter its order containing written findings until September 8.

Britt argues that the trial court erred in denying his September 14 motion to amend

on the basis of jurisdictional constraints because the sixty-day period in Rule 37.2 pertains

to the original petition, which was timely filed, and his motion to file an amended petition

was filed before the trial court had reached a decision on his postconviction petition. Britt

contends that the trial court, believing that it could not allow the amendment, thus exercised

no discretion in the matter. 2 We generally presume that the trial court considered the

appropriate factors in reaching discretionary decisions. Hessee v. Simoff Horse Transp., LLC,

2020 Ark. App. 229, 599 S.W.3d 694. This presumption, however, applies only in the

absence of any showing to the contrary. American States Ins. Co. v. Williams, 2010 Ark. App.

840. We will not make such a presumption, for example, when it is apparent from the trial

court’s stated reasons that it acted under an erroneous conception of the applicable law. See

First Nat’l Bank of Lawrence Cnty. v. Higginbotham Funeral Serv., Inc., 36 Ark. App. 65, 818

S.W.2d 583 (1991) (Cracraft, C.J., dissenting) (quoting 5 C.J.S. Appeal and Error § 1564(8)

(1958)). Although it is a heavy burden to establish that the trial court abused its discretion

2
We note that the trial court had already permitted a 120-day extension to file an
amended petition despite its pronouncement that it had no discretion to allow such
amendment.

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or failed to exercise its discretion, Clark v. State, 2019 Ark. App. 362, 584 S.W.3d 680, the

trial court here entered an order expressly finding that “because the time limitations set forth

by Rule 37 are jurisdictional in nature, this Court cannot extend Petitioner’s time to amend

his petition.” We agree with Britt that the trial court failed to exercise its discretion due to

a misunderstanding of the law. Pursuant to Rule 37.2(e), the trial court had discretion to

allow an amendment before the order denying relief was entered. Although the trial court

later noted that the matter was discretionary, its revised reasoning for the ruling was not

reduced to writing, and the written order was not subsequently modified. We reverse and

remand for the trial court to exercise its discretion in the matter.

B. January 7 Motions for Continuance and to Amend

Although filed separately, Britt’s motions for a continuance and to file an amended

petition were part and parcel of the overall relief he sought that day—a continuance for a

ninety-day period to allow Anjaria to complete his review and issue an opinion to be

included in an amended postconviction petition. Indeed, the trial court considered the

motions as one, even conflating them, e.g., in terms of response times. Both motions are

reviewed under an abuse-of-discretion standard on appeal. See Brooks v. State, 2019 Ark.

App. 592, 591 S.W.3d 389; Adams, supra.

While we may not have found an abuse of discretion with respect to the denial of

Britt’s motion for a continuance, we cannot say the same for Britt’s motion to file an

amended petition. As noted above, the two motions were interdependent. Britt contends

that the trial court erred in requiring a legitimate justification for filing an enlarged petition.

He points out that he sought to file only an amended petition. We agree that the trial court

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erred. The trial court’s denial of Britt’s motion to amend was based on a mischaracterization

of his motion, which led to the trial court’s application of an incorrect standard and a failure

to exercise its discretion. See Higginbotham, supra.

The law makes a distinction between an amended petition and an enlarged petition.

In Butler v. State, 367 Ark. 318, 239 S.W.3d 514 (2006), Butler had filed a pro se petition,

and once he retained counsel, counsel moved to substitute a new petition for the pro se

petition. The trial court denied counsel’s motion due, in part, to Butler’s failure to provide

a legitimate ground or justification for the amendment. The supreme court reversed and

remanded the denial and held that, unlike Rowbottom’s 3 requirements for filing an

overlength, or enlarged, petition, Ark. R. Crim. P. 37.2(e) does not contain the same

prerequisite that a petitioner provide a legitimate ground or justification to amend a petition;

rather, it requires only that a petitioner file the motion for leave to amend before the trial

court acts on the original petition.

Because we conclude that the trial court erred with respect to Britt’s motion to file

an amended petition, we reverse and remand for the trial court to exercise its discretion

with the understanding that no legitimate ground or justification is required for what was a

motion to file an amended, but not enlarged, petition.

C. Denial of Evidentiary Hearing

Rule 37.3(a) of the Arkansas Rules of Criminal Procedure provides that “[i]f 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

3
Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000).

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the files, or records that are relied upon to sustain the court’s findings.” If the trial court

does not dispose of a petition pursuant to subsection (a), the trial court shall grant a hearing.

Ark. R. Crim. P. 37.3(c). This court has previously interpreted Rule 37.3 to provide that

“an evidentiary hearing should be held in a postconviction proceeding unless the files and record

of the case conclusively show that the prisoner is entitled to no relief.” Wooten v. State, 338

Ark. 691, 694, 1 S.W.3d 8, 10 (1999) (emphasis added) (quoting Bohanan v. State, 327 Ark.

507, 510, 939 S.W.2d 832, 833 (1997) (per curiam)).

Britt argues that the trial court erred in denying an evidentiary hearing because he

made allegations of ineffective assistance of counsel that were sufficient to call for further

development. 4 We need not address each of Britt’s claims of ineffective assistance because

we agree with a preliminary point made by Britt. Britt maintains that the trial court applied

the wrong standard in denying his request for an evidentiary hearing. We agree that the trial

court effectively placed the burden of showing entitlement to relief on Britt because the

trial court, on more than one occasion, stated that Britt had not conclusively shown that he

was entitled to relief. Accordingly, we reverse this decision. On remand, the trial court is

instructed to determine whether the petition and the files and records of the case

conclusively show that Britt is entitled to no relief pursuant to Rule 37.3(a). We reverse and

remand for proceedings not inconsistent with this opinion.

Reversed and remanded.

4
Britt also argues that the trial court erred during the oral argument in not permitting
him to raise arguments based on Anjaria’s preliminary findings and in “forcing” him to
proffer the expert’s notes. We need not address this point, however, given the disposition
of this case. After all, there is no requirement that the trial court hold an oral argument
before it reaches a decision on a Rule 37 petition.

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GLADWIN and WHITEAKER, JJ., agree.

Craig Lambert, for appellant.

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

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