                                 Cite as 2017 Ark. App. 464


                 ARKANSAS COURT OF APPEALS

                                        DIVISION II
                                       No.CR-17-106

TYROME HARRIS, SR.                           Opinion Delivered:   September 20, 2017

                            APPELLANT APPEAL FROM THE PULASKI COUNTY
                                      CIRCUIT COURT, FIRST DIVISION
V.                                    [NO. 60CR-14-3398]

                                             HONORABLE LEON JOHNSON, JUDGE
STATE OF ARKANSAS
                                       REMANDED TO THE TRIAL COURT
                              APPELLEE TO SUPPLEMENT THE RECORD



                             DAVID M. GLOVER, Judge

       Tyrome Harris appeals pro se from the trial court’s October 20, 2016 denial of his

petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal

Procedure. His overall contention is that the trial court abused its discretion in rejecting his

arguments that his trial counsel was ineffective. In his notice of appeal, Tyrome designated

“the entire record, and all proceedings, exhibits, evidence, and documents introduced in

evidence to be contained in the record on appeal.” We cannot reach the merits of the appeal

because the record before us does not contain the elements of the record relied upon by the

trial court in denying the petition. We therefore remand to the trial court to supplement

the record within thirty days from the date of this opinion. Tyrome will then have the

option to file a new brief within fifteen days from receipt of the supplemented record, and

the State may respond if it chooses.
                                    Cite as 2017 Ark. App. 464

       Tyrome pled guilty to the underlying offense of first-degree battery, and as part of

his plea, according to the October 20, 2016 order denying his Rule 37 petition, “[t]he

Court granted the State’s motion to nolle prosequi the child enhancement and the habitual

allegation.” On March 7, 2016, Tyrome was sentenced to fifteen years in the Arkansas

Department of Correction, with an additional five years’ suspended imposition of sentence.

He was given credit for 535 days spent in custody. The sentencing order was filed on March

11, 2016.

       On April 22, 2016, Tyrome filed his Rule 37 petition for postconviction relief,

alleging four bases to support his contention that his counsel was ineffective: 1) counsel had

a conflict of interest with the alleged victim, 2) the plea agreement was for no enhancements

or habitual offender, 3) incorrect jail-time credit, and 4) the failure to advise him that he

would be required to serve 100 percent of his sentence because of a prior felony conviction.

On June 7, 2016, Tyrome filed a motion seeking a two-page extension to his Rule 37

petition, arguing that it was needed “to show facts that will support grounds that may lead

to the correction of my sentence.”

       There was no hearing on the petition. 1 Rule 37.3(a) provides, “If the petition and

the files and records of the case conclusively show that the petitioner is entitled to no relief,


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           The trial court explained in its October 20, 2016 order denying Tyrome’s petition:

                “Petitioner has failed to show any error made by counsel, any prejudice
       created by counsel’s conduct, or any insistence on going to trial at any point in time.
       The record clearly demonstrates that Petitioner was correctly apprised of his sentence,
       that his plea was knowing and voluntary, that trial counsel created no prejudice to
       the defense during the period of representation, and that Petitioner never expressed
       the desire to go to trial during the nearly 17-month pendency of the instant case. If
       a petition and the files and records of the case conclusively show that the petitioner is entitled to
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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.” The October 20, 2016 order

denying Tyrome’s Rule 37 petition provided in pertinent part:

               Petitioner’s first claim for post-conviction relief states that trial counsel
       previously represented the victim in this case on another matter. Petitioner states no
       additional facts to substantiate this allegation. Furthermore, Petitioner has not raised
       this issue before the Court neither in his many letters to the Court nor his many
       appearances before the Court. The Court finds that Petitioner has not met the factual
       burden on this argument, and is therefore entitled to no relief.

               Petitioner’s second ground for post-conviction relief claims that the
       negotiated plea agreement included a provision to nolle-prosequi case 60CR-14-2754
       and any enhancements including the habitual offender allegation. On February 8,
       2016, Petitioner appeared represented by counsel to enter a plea. Conditioned on
       the Court’s acceptance of a plea of guilty, the State made a motion to nolle prosequi
       case 60CR-14-2754, the child enhancement, and the habitual allegation. The Court
       then inquired of Petitioner whether he understood the charges, penalty range, rights
       he was giving up by entering a plea of guilty, whether he completed and initialed
       the plea statement, and whether Petitioner was freely, knowingly, and voluntarily
       pleading guilty, all of which the Petitioner responded in the affirmative. The Court
       accepted the plea as knowingly and voluntarily entered at which time the State’s
       motion to nolle prosequi case 60CR-14-2754, the child enhancement, and habitual
       allegation was granted. The Court finds no merit in Petitioner’s argument on this
       ground and denies any relief on this basis.

               Petitioner’s third claim for post-conviction relief states that counsel was
       ineffective for failing to request that his jail credit run concurrent with four other
       cases for which Petitioner had previously been sentenced. The Court has no
       authority over how jail credit is applied through the Department of Correction. Jail
       time credit is appropriate when a defendant’s pretrial incarceration is due to his
       inability to make bail, but is inappropriate for time served in connection with wholly
       unrelated charges based on conduct other than for which the defendant is ultimately
       sentenced. Boone v. State, 270 Ark. 83, 603 S.W.2d 410 (1980). Because Petitioner
       has demonstrated no claim appropriate for post-conviction relief, no relief is available
       on this ground.


       no relief, the Court may dispose of the petition without holding an evidentiary hearing.
       A.R.Cr. P. 37.3(a). Petitioner has failed to show any error made by counsel or any
       actual prejudice created by counsel’s conduct.” (Emphasis added.)


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              Petitioner’s final claim for relief states that counsel was ineffective for failing
       to inform Petitioner that he would be required to serve 100% of his sentence before
       becoming parole eligible. Petitioner further claims that he was led to believe he
       would only be required to serve 1/3 or 5 years of the sentence. Petitioner claims this
       omission rendered his plea involuntary. A review of the record from the sentencing
       hearing held March 7, 2016 conclusively shows that trial counsel explicitly stated
       twice on the record that Petitioner would have to serve his sentence day-for-day
       (Transcript p. 16) and that Petitioner would have to serve 100% of his sentence
       (Transcript p. 15). The Court finds this claim to be wholly without merit and denies
       any relief on this ground.

       On the same date as the order denying the petition was entered, the trial court

entered a separate order denying the request for a two-page extension, concluding that the

court’s disposition “of defendant’s petition through written findings,” rendered the motion

for a two-page extension moot.

       On November 1, 2016, 2 Tyrome filed a motion for reconsideration. He argued that

the trial court had failed to address his contentions that he pled guilty based on

misinformation and that he would not have pled guilty if he had realized he would have to

serve 100 percent of his sentence. On November 28, 2016, Tyrome’s notice of appeal was

electronically filed. His notice provides that he appeals from the final order of the trial court

entered on October 20, 2016. By order entered on December 7, 2016, the trial court denied

the motion for reconsideration, finding that “all grounds, including enhancements, were

addressed in its order issued on October 20, 2016.”

       This is a pro se appeal, and it is difficult to understand many of Tyrome’s contentions.

However, his primary argument in his Rule 37 petition and on appeal is that his counsel



       The file mark on the typed version says December 29, 2016, but the December 7,
       2


2016 order says it was filed on November 1, 2016, and a handwritten motion appears in the
addendum with the November 1 stamp.
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was ineffective because he allegedly told Tyrome he would have to serve only one-third of

his fifteen-year sentence and never told him he would have to serve 100 percent of his

sentence. In rejecting this argument, the trial court explained that the record of the

sentencing hearing “conclusively shows that trial counsel explicitly stated twice on the

record that Petitioner would have to serve his sentence day-for-day (Transcript p. 16) and

that Petitioner would have to serve 100 percent of his sentence (Transcript p. 15).” Yet the

transcript of this sentencing hearing was not included in the record before us. As mentioned

previously, the trial court concluded that a Rule 37 hearing was not necessary because the

record conclusively demonstrated that Tyrome was entitled to no relief. We cannot review

Tyrome’s claims on appeal without understanding the context relied upon by the trial court

in rejecting Tyrome’s arguments. We therefore remand this case to the trial court to

supplement the record in this appeal to include, at a minimum, the transcript of the

sentencing hearing, along with any other files or records relied upon by the trial court in

reaching its decision to deny Tyrome’s petition.

       Remanded to trial court to supplement record.

       VIRDEN and MURPHY, JJ., agree.

       Tyrome Harris, pro se appellant.

       Leslie Rutledge, Att’y Gen., by: Ashley Priest, Ass’t Att’y Gen., for appellee.




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