Act III Evaluation Time and Joint Continuances Are Excludable for Speedy-Trial Calculations: Neal v. State (2025 Ark. 151) and the Boundaries of Ineffective Assistance in Arkansas

Introduction

In Ricky Lewis Neal v. State of Arkansas, 2025 Ark. 151, the Supreme Court of Arkansas affirmed the denial of a Rule 37.1 postconviction petition alleging ineffective assistance of counsel. Neal, convicted in December 2022 of first-degree murder and sentenced to life as a violent-felony habitual offender, claimed his trial counsel was deficient on multiple fronts: failing to assert speedy-trial rights, mishandling hearsay evidence issues tied to a voicemail and related phone records, misadvising him about a plea offer, and requesting a court-ordered mental evaluation (an “Act III” evaluation) without his consent.

Chief Justice Karen R. Baker, writing for a unanimous court (with one concurrence without opinion and one non-participating Justice), held that none of the asserted deficiencies met the two-pronged Strickland standard. The opinion reinforces several important procedural and substantive principles in Arkansas criminal practice: the treatment of excludable time for speedy-trial purposes when an Act III evaluation is ordered and when joint continuances are granted; the rigorous presumption of effective representation under Strickland v. Washington; the necessity of preservation and rulings in Rule 37 proceedings; and the evidentiary consequence of a record that belies postconviction claims—especially in plea-bargain advisement disputes.

Summary of the Opinion

Standard and posture: Applying Strickland, the Court required Neal to show both deficient performance and prejudice. It reviewed the Rule 37 denial for clear error.
Speedy-trial claim: Although 706 days elapsed between arrest (December 24, 2020) and trial (November 30, 2022), the Court identified 413 excludable days—81 days for a defense continuance, 281 days from the Act III evaluation order to the filing of the report, and 51 days for a joint continuance—leaving 293 countable days. A speedy-trial motion would have failed; counsel was not ineffective for omitting a meritless motion.
Phone communications issues (hearsay/transcripts/records): The hearing transcript reflected no State possession of a voicemail transcript and no existing phone/records from witness Michelle Grimes, and defense counsel effectively cross-examined on that absence. Claims about hearsay layers and failure to investigate were not preserved because the circuit court did not rule on them.
Plea advisement: The record showed the plea was explained in detail on the record before trial: a reduction to manslaughter with a 15-year recommendation versus possible life if convicted of first-degree murder. Neal acknowledged understanding and rejected the offer. His postconviction claim that counsel told him he would receive life even if he pled guilty was “belied by the record.”
Act III evaluation request: Counsel’s request for a mental evaluation (to determine fitness to proceed) was within reasonable professional judgment; Neal showed no resulting prejudice.
Disposition: Affirmed; no clear error in denying Rule 37 relief.

Analysis

Precedents Cited and Their Role

Strickland v. Washington, 466 U.S. 668 (1984) (via Thomas v. State, 2022 Ark. 12): Established the two-prong ineffective assistance test—deficiency and prejudice. The Court reiterated the strong presumption of reasonable professional assistance and the petitioner’s heavy burden.
Parker v. State, 2023 Ark. 41; Ark. R. Crim. P. 28.1, 28.3, 30.1: Restated Arkansas’s 12-month speedy-trial rule and the absolute bar to prosecution for violations, subject to excludable periods under Rule 28.3.
Marshall v. State, 2020 Ark. 66: The critical speedy-trial authority governing mental evaluations. Time from the order for a forensic evaluation of fitness to proceed through the date the report is filed is excludable under Rule 28.3. The Court used Marshall to exclude 281 days in Neal’s case.
Gwin v. State, 340 Ark. 302, 9 S.W.3d 501 (2000): A joint continuance is attributed to both parties and is excluded from speedy-trial calculations. The Court applied Gwin to exclude 51 days near trial.
Douglas v. State, 2018 Ark. 89: Counsel is not ineffective for failing to file a motion that would not have succeeded. The Court used this to dispose of Neal’s speedy-trial ineffectiveness claim.
Lowery v. State, 2021 Ark. 97: Issues not ruled on by the circuit court are not preserved for appellate review in Rule 37 proceedings. This was dispositive of Neal’s hearsay-layer and failure-to-investigate theories.
Williams, 2019 Ark. 289: The Court may take judicial notice of the direct-appeal record during postconviction review without supplementation. The Court relied on the direct-appeal timeline to compute speedy-trial time.
Pree v. State, 2022 Ark. 187: Reiterated the “heavy burden” to show counsel fell below an objective standard of reasonableness and the strong presumption of adequacy; applied against the plea-advice claim.
Whiteside v. State, 2024 Ark. 30: Even if deficiency were shown, the petitioner must prove prejudice—a reasonable probability of a different outcome. The Court used Whiteside to reject any prejudice theory associated with the Act III evaluation.

Legal Reasoning

1) Speedy-Trial Ineffective Assistance

The starting point was the total elapsed period: 706 days from arrest to trial. The Court then identified excludable segments under Rule 28.3:

Defense continuance: After Neal’s April 8, 2021 appearance, further proceedings regarding the potential need for an Act III evaluation were continued by agreement to June 28, 2021—81 days excluded under Rule 28.3(c).
Act III evaluation window: Evaluation requested June 28, 2021 and ordered June 30, 2021; report filed April 7, 2022—281 days excluded under Marshall.
Joint continuance: Omnibus hearing October 10, 2022; jointly requested continuance to November 30, 2022—51 days excluded under Gwin.

These exclusions totaled 413 days. Subtracting 413 from 706 left 293 days—well within the 12-month limit. Because a speedy-trial motion would have failed, counsel was not deficient for not filing it (Douglas). The Court also noted (and set aside as unpreserved) Neal’s argument that his absence from a November 1, 2021 hearing where counsel agreed to a February 28, 2022 continuance should negate exclusion; in any event, the Marshall period independently covered that span.

2) Voicemail/Phone Evidence: Transcript, Hearsay, and Investigation

Neal argued counsel should have compelled disclosure of a transcript of a voicemail from the victim (Cawley) to a witness (Grimes), that counsel failed to preserve a “double-hearsay” objection, and that counsel failed to obtain phone records.

No transcript deficiency: The circuit court found no evidence the State ever possessed a transcript or withheld it, and Grimes testified she no longer had the phone or records. Counsel thoroughly cross-examined on those points. The Supreme Court agreed that, on these facts, there was no deficient performance.
Unpreserved arguments: Claims about hearsay layering and failure to investigate (i.e., obtaining phone records) were not ruled upon by the circuit court; thus, they were not preserved for review under Lowery.

3) Plea Advisement Claim

The record documented an on-the-record colloquy before trial: the State offered to reduce the charge to manslaughter with a recommended sentence of fifteen years; Neal was explicitly advised that a first-degree murder conviction would carry a life sentence; he affirmed his understanding and rejected the offer. In light of this, Neal’s postconviction assertion—that counsel misled him into thinking he would receive life even if he pled guilty—was “belied by the record.” Given the strong presumption of adequate counsel (Pree), the Court found neither deficiency nor prejudice.

4) Counsel’s Request for an Act III Evaluation

Neal contended counsel acted without his permission and thereby harmed his speedy-trial rights. The Court rejected both prongs of Strickland:

Deficiency: Requesting a fitness-to-proceed evaluation is a classic professional judgment call, often protective of a defendant’s due process rights. No facts suggested the request fell outside reasonable standards.
Prejudice: Neal failed to show any reasonable probability of a different verdict but for the evaluation. The evaluation’s timing was already accounted for as excludable time, and there was no link between the evaluation and the jury’s finding of guilt (Whiteside).

Impact

Speedy-trial calculus reaffirmed and clarified: Neal underscores that periods associated with Act III evaluations—specifically from the court’s order to the filing of the report—are excludable under Rule 28.3, consistent with Marshall. Joint continuances remain excluded under Gwin. Practitioners must carefully chart all excluded intervals; failure to do so can lead to incorrect conclusions about speedy-trial violations.
Professional judgment deference: The decision reinforces the strong presumption that strategic or protective decisions (such as seeking a fitness evaluation) fall within acceptable professional norms absent concrete proof to the contrary.
Plea colloquy as record armor: In plea-advisement disputes, a thorough on-the-record explanation of the offer and sentencing exposure can be dispositive. Trial judges and counsel who memorialize the advisement protect the integrity of plea negotiations and inoculate the record against later IAC claims.
Preservation discipline in Rule 37 practice: Neal is a cautionary tale: claims not ruled upon by the circuit court are not reviewable on appeal. Petitioners and counsel must secure express rulings on all claims to preserve them.
Discovery and non-existent evidence: The Court’s acceptance of the circuit court’s findings that neither the State nor the witness possessed the voicemail transcript or phone records signals that IAC claims premised on compelling non-existent materials will fail, especially where defense counsel effectively exploits the absence through cross-examination.

Complex Concepts Simplified

Strickland deficiency and prejudice: To win an ineffective-assistance claim, a defendant must prove (1) counsel made errors no reasonable lawyer would make, and (2) those errors probably changed the verdict or outcome.
Act III evaluation: In Arkansas practice, an “Act III” evaluation is a court-ordered mental examination to determine whether the defendant is competent (fit) to stand trial. Time from the order to the filing of the report is excluded from speedy-trial calculations.
Speedy-trial exclusions (Rule 28.3): Certain delays don’t count against the 12-month clock, including defense-requested continuances, court-ordered mental evaluations, and jointly requested continuances.
Joint continuance: A postponement requested by both the prosecution and defense. The law presumes the defendant consents, so the time is excluded from the speedy-trial tally.
Judicial notice of the record: On Rule 37 appeal, the Supreme Court can look at the direct-appeal record without requiring a new filing to confirm dates and events (e.g., to compute speedy-trial time).
Hearsay within hearsay (“double hearsay”): A statement that contains another statement—both layers must satisfy a hearsay exception to be admissible. In Neal, the Court did not reach this issue because there was no circuit-court ruling to review.
“Belied by the record” in plea claims: When the transcript shows the plea was clearly explained and the defendant acknowledged understanding, later contrary assertions typically fail.
Standard of review—clearly erroneous: The appellate court will not reverse the denial of Rule 37 relief unless firmly convinced a mistake was made after reviewing all the evidence.

Key Timelines and Computations (Speedy Trial)

Total elapsed: 706 days (Dec. 24, 2020 arrest to Nov. 30, 2022 trial).
Excluded:
- 81 days: defense-agreed continuance (Apr. 8, 2021 to Jun. 28, 2021).
- 281 days: Act III evaluation period (Jun. 30, 2021 order to Apr. 7, 2022 report file date).
- 51 days: joint continuance (Oct. 10, 2022 to Nov. 30, 2022).
Excludable total: 413 days. Countable days: 706 − 413 = 293 days. No speedy-trial violation.

Conclusion

Neal v. State (2025 Ark. 151) is a careful reaffirmation of settled Arkansas law applied to a common constellation of Rule 37 ineffective-assistance allegations. It clarifies—again—that:

Act III evaluation time (from court order to report filing) and joint continuances are excludable under Rule 28.3, often determinative in speedy-trial analyses.
Counsel is not ineffective for omitting futile motions, and strategic steps like seeking a fitness evaluation rest squarely within reasonable professional judgment absent concrete contrary proof.
Plea-advisement claims falter when contradicted by a robust on-the-record colloquy.
Postconviction litigants must ensure the circuit court rules on each claim; otherwise, appellate review is foreclosed.

By validating these principles, the Court provides practical guidance to trial counsel, trial courts, and postconviction practitioners. The decision emphasizes rigorous record-making, disciplined preservation, and precise computation of excludable time as cornerstones of competent criminal practice in Arkansas.