{
  "id": 1877668,
  "name": "Gary LOMAX v. STATE of Arkansas",
  "name_abbreviation": "Lomax v. State",
  "decision_date": "1985-04-22",
  "docket_number": "CR 84-195",
  "first_page": "440",
  "last_page": "442",
  "citations": [
    {
      "type": "official",
      "cite": "285 Ark. 440"
    },
    {
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      "cite": "688 S.W.2d 283"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
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    "name_long": "Arkansas",
    "name": "Ark."
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      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
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      "year": 1979,
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      "cite": "283 Ark. 264",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
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      "weight": 2,
      "year": 1984,
      "opinion_index": 0,
      "case_paths": [
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    },
    {
      "cite": "386 U.S. 738",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        6182629
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      "year": 1967,
      "opinion_index": 0,
      "case_paths": [
        "/us/386/0738-01"
      ]
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  "last_updated": "2023-07-14T21:18:39.025760+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Gary LOMAX v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Per Curiam.\nAppellant Gary Lomax was found guilty by a jury of aggravated robbery and s\u00e9ntenced to a term of 20 years imprisonment in the Arkansas Department of Correction. He subsequently filed a petition pursuant toA.R.Cr.P. Rule 37 to vacate the sentence, alleging ineffective assistance of counsel. The petition was denied without a hearing and appellant brings this appeal.\nPursuant to Anders v. California, 386 U.S. 738 (1967), appellant\u2019s counsel has filed a motion to be relieved and a brief stating there is no merit to the appeal. Appellant was notified of his right to file a pro se brief within 30 days. See Rules of the Supreme Court, Rule 11(h), Ark. Stat. Ann. Vol. 3A (Supp. 1983). He did not file a brief. The State concurs that the appeal has no merit.\nPetitioner alleged in his petition for postconviction relief that counsel was ineffective for urging him to accept a plea bargain, advising him not to testify and failing to perfect an appeal. Neither urging an accused to accept a negotiated plea nor merely advising him against taking the stand constitutes ineffective assistance of counsel. Both are matters of strategy and therefore outside the purview of Rule 37. Smith v. State, 283 Ark. 264, 675 S.W.2d 627 (1984).\nThe circuit court need not hold an evidentiary hearing where it can be conclusively shown on the record or the face of the petition itself, as it can be in this case, that the allegations have no merit. See Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979). On appeal, we affirm the trial court\u2019s denial of postconviction relief unless it is clearly against the preponderance of the evidence. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984). The trial court\u2019s decision here was not clearly against the preponderance of the evidence.\nWith regard to petitioner\u2019s claim that his attorney failed to appeal when requested to do so, petitioner was entitled at most to a belated appeal, but he failed to request one in accordance with A.R.Cr.P. Rule 36.9 which governs motions for belated appeal. Appellant was committed in February, 1982, and therefore could have filed a motion for belated appeal in this Court at any time between that date and August, 1983, which was eighteen months after the date of commitment. Rule 36.9. He did not file such a motion. Instead, petitioner raised the question of whether counsel was ineffective for failure to appeal in his Rule 37 petition, filed April 11, 1984. Rule 37, however, is not a means of by-passing a motion for belated appeal. If it were construed to be so, an appellant could simply ignore the rule limiting the time for filing a motion for belated appeal in favor of filing a Rule 37 petition which may be filed at any time up to three years from the date of commitment. See Rule 37.2(c).\nFrom a review of the record and briefs before this Court, we find the appeal to be without merit. Accordingly, counsel\u2019s motion to be relieved is granted and the judgment is affirmed.\nAffirmed.",
        "type": "majority",
        "author": "Per Curiam."
      }
    ],
    "attorneys": [
      "Ricky Gill, for appellant.",
      "Steve Clark, Att\u2019y Gen., by: Michael E. Wheeler, Asst. Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Gary LOMAX v. STATE of Arkansas\nCR 84-195\n688 S.W.2d 283\nSupreme Court of Arkansas\nOpinion delivered April 22, 1985\nRicky Gill, for appellant.\nSteve Clark, Att\u2019y Gen., by: Michael E. Wheeler, Asst. Att\u2019y Gen., for appellee."
  },
  "file_name": "0440-01",
  "first_page_order": 470,
  "last_page_order": 472
}