Sandrelli v. State

Paul Danielson, Justice,

concurring.

I concur in the disposition of this case. However, I would reverse and remand for an evidentiary hearing for the simple reason that the petition and record do not conclusively show that Sandrelli is entitled to no relief on his claim that his trial counsel did not consult him before deciding that he would not testify. See Ark. R.Crim. P. 37.3; Beverage v. State, 2015 Ark. 112, 458 S.W.3d 243. It is well settled that an accused has the right to choose whether to testify in his own behalf and that counsel may only, advise the accused in making this decision. See, e.g., Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000) (per curiam). Without an evidentiary hearing, we cannot conclusively determine whether counsel’s performance on this issue was deficient and, if so, whether it prejudiced the defense.