{ "id": 3713637, "name": "Beverly MAXWELL v. STATE of Arkansas", "name_abbreviation": "Maxwell v. State", "decision_date": "2004-11-04", "docket_number": "CR 03-1220", "first_page": "335", "last_page": "340", "citations": [ { "type": "official", "cite": "359 Ark. 335" }, { "type": "parallel", "cite": "197 S.W.3d 442" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "325 Ark. 237", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369138 ], "weight": 2, "year": 1996, "pin_cites": [ { "parenthetical": "holding that although Rule 36.22 [an earlier version of Rule 33.3], states that a hearing is required when it is requested, the rule provides for no sanction when a hearing is not afforded a party" }, { "parenthetical": "holding that although Rule 36.22 [an earlier version of Rule 33.3], states that a hearing is required when it is requested, the rule provides for no sanction when a hearing is not afforded a party" } ], "opinion_index": 0, "case_paths": [ "/ark/325/0237-01" ] }, { "cite": "358 Ark. 460", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8452718 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/358/0460-01" ] }, { "cite": "942 S.W.2d 863", "category": "reporters:state_regional", "reporter": "S.W.2d", "weight": 2, "year": 1997, "opinion_index": 0 }, { "cite": "328 Ark. 251", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50282 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/328/0251-01" ] }, { "cite": "326 Ark. 637", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12023952 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/0637-01" ] }, { "cite": "357 Ark. 27", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5405444 ], "weight": 5, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/357/0027-01" ] }, { "cite": "314 Ark. 500", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912779 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0500-01" ] }, { "cite": "354 Ark. 384", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 36055 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/354/0384-01" ] }, { "cite": "359 Ark. 16", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3712343 ], "weight": 4, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/359/0016-01" ] } ], "analysis": { "cardinality": 491, "char_count": 10342, "ocr_confidence": 0.769, "pagerank": { "raw": 1.2497887162203644e-07, "percentile": 0.6098009961198511 }, "sha256": "155d1c3a3ab1b2c023fef03a308239eab1cc022a8ef93e43b6300b0cc985a124", "simhash": "1:eb2b192c73845475", "word_count": 1687 }, "last_updated": "2023-07-14T17:12:09.658813+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Beverly MAXWELL v. STATE of Arkansas" ], "opinions": [ { "text": "Ray Thornton, Justice.\nAppellant, Beverly Maxwell, was convicted of attempting to obtain prescription drugs by fraud and sentenced to sixty months\u2019 probation. Appellant\u2019s conviction stems from an incident that occurred on February 26, 2002. On that day, the Harvest Foods pharmacy received a call from \u201cSylvia,\u201d an individual claiming to be a nurse from Dr. Patrick Osam\u2019s office. \u201cSylvia\u201d called in a prescription for generic Darvocet and Phenergan for appellant\u2019s daughter, Lashawna Maxwell. The pharmacist, Leo Kordsmeier, had previously received call-in prescriptions for Lashawna from \u201cSylvia,\u201d but they were normally received after hours. Appellant usually picked up the prescriptions.\nIn an effort to verify the prescriptions, Mr. Kordsmeier called Dr. Osam\u2019s office. Dr. Osam\u2019s office informed Mr. Kordsmeier that \u201cSylvia\u201d was not employed by the office, and that they had not called in a prescription for Lashawna. In fact, according to Dr. Osam, on February 26, 2002, he was in Florida, and according to his records neither Lashawna Maxwell nor Beverly Maxwell were his patients at that time. After failing to validate the prescriptions, the police were notified. When appellant arrived at the pharmacy and requested a prescription for \u201cMaxwell,\u201d she was arrested.\nOn May 17, 2002, the State filed a criminal information, charging appellant with criminal attempt to obtain drugs by fraud. In the information, the State also alleged that appellant had previously been convicted of four or more felonies.\nOn February 11, 2003, a bench trial was held in the Pulaski County Circuit Court. At the end of the State\u2019s case-in-chief, appellant\u2019s attorney moved for a directed verdict. The trial court denied appellant\u2019s motion. The motion was not renewed at the close of the evidence. After considering the evidence, the trial court concluded that appellant was guilty. On May 15, 2003, appellant was sentenced to sixty months probation. On May 22, 2003, the judgment and commitment order was filed.\nOn June 6, 2003, after retaining new counsel, appellant filed a motion seeking a new trial. In her motion, appellant argued that she deserved a new trial because her trial counsel was ineffective. Appellant argued that her trial counsel was ineffective because she failed to obtain complete discovery prior to trial and because she permitted appellant\u2019s son to testify at trial against appellant\u2019s wishes. No action was taken on appellant\u2019s motion, and after thirty days, appellant\u2019s motion was deemed denied.\nOn August 5, 2003, appellant filed her notice of appeal. Appellant raises two points for our consideration, and we affirm on both points.\nIn her second point on appeal, appellant argues that the evidence was insufficient to support her conviction. Although appellant raises this issue as her final point on appeal, double-jeopardy considerations require us to consider a challenge to the sufficiency of the evidence before considering the other points that are raised. Pratt v. State, 359 Ark. 16, 194 S.W.3d 183 (2004).\nBefore considering the merits of appellant\u2019s challenge to the sufficiency of the evidence, we must first determine whether the issue was properly preserved for appellate review. A criminal defendant challenges the sufficiency of the evidence by raising a motion to dismiss or a motion requesting a directed verdict. Rule 33.1 of the Arkansas Rules of Criminal Procedure explains the procedure a criminal defendant must follow when making a proper motion for dismissal or directed verdict. The Rule in relevant part provides:\n(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution\u2019s evidence, then the motion must be renewed at the close of all of the evidence.\n(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment.\nId.\nRule 33.1 is strictly construed. Pratt, supra. In accordance with this rule, we have beld that to preserve a challenge to the sufficiency of the evidence in a bench trial a criminal defendant must make a motion for dismissal at the close of the evidence. See McClina v. State, 354 Ark. 384, 123 S.W.3d 883 (2003).\nMindful of the foregoing principles, we must now consider whether the motion made by appellant\u2019s attorney preserved for appeal the issue of the sufficiency of the evidence. At the close of tbe State\u2019s case-in-chief, appellant\u2019s attorney argued that the State had failed to meet its burden of proof and requested that the trial court dismiss the charge against appellant. The trial court denied appellant\u2019s motion, and appellant proceeded to present her casein-chief. At the close of her case, the following colloquy occurred:\nMs. Mosby [counsel for appellant]: We rest,your honor.\nTrial court: Anything further from the State?\nMr. Smith [prosecutor]: State has no rebuttal.\nTrial court: Okay. I\u2019m going to find the defendant guilty.\nAfter reviewing the facts surrounding appellant\u2019s motion for dismissal, and the foregoing colloquy, we conclude that appellant failed to comply with the requirements of Rule 33.1 because she failed to make a renewed motion for dismissal at the close of the evidence. Because appellant failed to comply with Rule 33.1, appellant\u2019s sufficiency argument is not preserved for appeal.\nAppellant next argues that she is entitled to a new trial because her trial attorney was ineffective. Appellant challenged the effectiveness of her attorney in a motion requesting a new trial. She argued that she was entitled to a new trial because her attorney failed to obtain and introduce certain evidence and because her attorney permitted her son to testify at trial against appellant\u2019s wishes. A hearing was not held to consider appellant\u2019s motion and an order was not entered granting or denying appellant\u2019s motion. Thus, pursuant to Rule 33.3, appellant\u2019s motion was deemed denied after thirty days. In her notice of appeal, appellant stated that she was appealing from her conviction, sentence, and the denial of her motion requesting a new trial.\nWe have previously reviewed challenges to the effectiveness of a trial attorney in a direct appeal when such claims were raised in a posttrial motion requesting a new trial and a hearing to consider the issue was held. See Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). Specifically, we have held that in the interest of judicial economy, we will review claims of ineffectiveness of counsel, provided that the allegation is raised before the trial court and all the facts and circumstances surrounding the claim have been fully developed. Ratchford v. State, 357 Ark. 27, 159 S.W.3d 304 (2004). The facts surrounding the claim must be fully developed, either during the trial or during hearings conducted by the trial court. Id. We have explained that the reason for this rule is that an evidentiary hearing and finding as to the competency of appellant\u2019s counsel by the trial court better equips the appellate court on review to examine in detail the sufficiency of the representation. Id. We have also noted that the trial court is in a better position to assess the quality of legal representation than we are on appeal. Id.\nWe have also explained that a \u201cdeemed denied\u201d ruling on a posttrial motion for new trial is an insufficient order from which to raise on direct appeal a claim of ineffectiveness because such a ruling necessarily precludes any consideration by the trial court of the relevant facts pertaining to the claim. Dodson v. State, 326 Ark. 637, 934 S.W.2d 198 (1996); see also Chavis v. State, 328 Ark. 251, 942 S.W.2d 863 (1997).\nIn the case now before us, appellant has failed to present us with a sufficient order from which to consider her allegations of trial counsel\u2019s ineffectiveness. Specifically, appellant\u2019s ineffective assistance of counsel claims were not raised or developed during the trial. Additionally, the facts surrounding appellant\u2019s claims were not developed after the trial because a hearing was not held on appellant\u2019s posttrial motion. Finally, because appellant\u2019s motion was deemed denied, there is no order in which the trial court evaluated counsel\u2019s effectiveness. Because we have been provided with nothing other than the bare allegations set out in appellant\u2019s motion requesting a new trial, we are unable to consider the merits of appellant\u2019s ineffective assistance of counsel claims.\nAffirmed.\nRule 33.3 in relevant part provides:\n(a) A person convicted of either a felony or misdemeanor may file a motion for new trial or any other application for relief.\n(c) If the trial court neither grants nor denies a posttrial motion or application for relief within thirty (30) days after the date the motion or application is filed, the motion or application shall be deemed denied as of the 30th day.\nId.\nIn the case now before us, appellant does not argue that the trial court erred when it failed to hold a hearing on her posttrial motion. However, with no citation to authority, appellant suggests that we could remand her case for an evidentiary hearing on her ineffective assistance of counsel claims. We do not consider claims that are not supported by citation to authority. See Johnson v. State, 358 Ark. 460, 193 S.W.3d 260 (2004). Nonetheless, to the extent that appellant is arguing that she is entided to a hearing pursuant to Rule 33.3, we note that in previous cases we have concluded that there was no error committed when a trial court refused to hold a requested hearing on a posttrial motion. See Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996) (holding that although Rule 36.22 [an earlier version of Rule 33.3], states that a hearing is required when it is requested, the rule provides for no sanction when a hearing is not afforded a party).", "type": "majority", "author": "Ray Thornton, Justice." } ], "attorneys": [ "The Lisk Firm, by: Lynn D. Lisk, for appellant.", "Mike Beebe, Att\u2019y Gen., by: Misty Wilson Borkowski, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Beverly MAXWELL v. STATE of Arkansas\nCR 03-1220\n197 S.W.3d 442\nSupreme Court of Arkansas\nOpinion delivered November 4, 2004\nThe Lisk Firm, by: Lynn D. Lisk, for appellant.\nMike Beebe, Att\u2019y Gen., by: Misty Wilson Borkowski, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0335-01", "first_page_order": 357, "last_page_order": 362 }