Fletcher v. State , 2015 Ark. 106 ( 2015 )

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    2015 Ark. 106
                       SUPREME COURT OF ARKANSAS
                                             No.   CR-14-728
                                                        Opinion Delivered March   12, 2015
    RODNEY FLETCHER                                     PRO SE APPEAL FROM THE
                                    APPELLANT           FULTON COUNTY CIRCUIT COURT
                                                        [NO. 25CR-10-77]
                                                        HONORABLE TIM WEAVER, JUDGE
    STATE OF ARKANSAS                                   AFFIRMED.
                                            PER CURIAM
           In 2012, appellant Rodney Fletcher was found guilty by a jury of commercial burglary,
    theft of property, and fraud. He was found not guilty of eighteen counts of possession of a
    controlled substance with intent to deliver. Appellant was sentenced to serve an aggregate term
    of 1,200 months’ imprisonment and a fine of $35,000 was imposed. The Arkansas Court of
    Appeals affirmed. Fletcher v. State, 
    2014 Ark. App. 50
           After the mandate in the case issued on February 11, 2014, appellant timely filed in the
    trial court a verified pro se petition for postconviction relief pursuant to Arkansas Rule of
    Criminal Procedure 37.1 (2012). A hearing was held on the petition, and the trial court entered
    an order denying the relief sought. Appellant brings this appeal.
           This court has held that it will reverse the trial court’s decision granting or denying
    postconviction relief only when that decision is clearly erroneous. Conley v. State, 
    2014 Ark. 172
    433 S.W.3d 234
    . A finding is clearly erroneous when, although there is evidence to support it,
    the appellate court, after reviewing the entire evidence, is left with the definite and firm
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    conviction that a mistake has been committed. Caery v. State, 
    2014 Ark. 247
     (per curiam); Sartin
    v. State, 
    2012 Ark. 155
    400 S.W.3d 694
           Appellant’s initial argument on appeal is that the evidence adduced at trial was
    insufficient to sustain the judgment of conviction. The assertion is not a ground for relief under
    the Rule. Questions pertaining to the sufficiency of the evidence are matters to be addressed at
    trial and on direct appeal and are not cognizable in a postconviction proceeding. Mathis v. State,
    2014 Ark. 148
     (per curiam); Green v. State, 
    2013 Ark. 455
     (per curiam). A postconviction
    proceeding under Rule 37.1 is not a substitute for direct appeal or an opportunity to challenge
    the strength of the evidence adduced at trial. Mathis, 
    2014 Ark. 148
    ; Green, 
    2013 Ark. 455
            Appellant raised in his Rule 37.1 petition the claim that his sentences as a habitual
    offender exceeded the range set by Arkansas Code Annotated section 5-4-501(a) (Repl. 2006),
    which was the statute indicated on the original sentencing order as being applicable to his
    sentence. At the evidentiary hearing, the trial court noted that it was an error for the box next
    to section 5-4-501(a) to be checked on the original sentencing order because the jury was
    instructed that 5-4-501(b) applied and appellant was found to have the requisite number of prior
    convictions in accordance with section 5-4-501(b). The trial court entered a modified order to
    correct the error. Appellant contends on appeal that the trial court did not have authority to
    correct the sentencing order in his case to reflect that he was sentenced as a habitual offender
    under section 5-4-501(b) rather than 5-4-501(a). We find no error.
           Rule 37.1(a)(iii) permits the trial court to correct an improper sentence, but, here, there
    was no showing that an improper sentence was imposed. The trial court merely amended the
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    sentencing order to reflect the correct statute under which appellant was sentenced in
    accordance with the instructions given the jury, and appellant does not argue that the amended
    sentencing order does not reflect the sentence imposed.
           At the close of the argument portion of the appellant’s brief, appellant reproduces the
    Rule 37.1 petition filed in the trial court and labels it as “argument,” without making any
    arguments beyond those contained in the petition. Even if we consider the claims in the petition
    as points for reversal of the order, we find no ground to overturn the order.
           In addition to the arguments already addressed, appellant contended in his petition that
    he was denied a speedy trial, the trial court erred in denying a motion for mistrial made by his
    counsel during trial, and the State did not meet its discovery obligations. We have consistently
    held that such claims are a direct attack on the judgment and are thus properly raised in the trial
    court; such claims are not grounds for a collateral attack on the judgment under Rule 37.1.
    Camacho v. State, 
    2011 Ark. 235
     (per curiam) (A challenge to a judgment based on assertion of
    a speedy-trial violation was not cognizable under the Rule.). Assertions of trial error, even if of
    constitutional dimension, must be raised at trial and on appeal. Watson v. State, 
    2012 Ark. 27
           Appellant also claimed in the petition that the State violated Brady v. Maryland, 
    373 U.S. 83
     (1963), by withholding evidence from the defense until the middle of trial. The claim is
    clearly one that could have been made at the time of trial. As such, it is also not a ground for
    relief under Rule 37.1. Cunningham v. State, 
    2013 Ark. 304
    429 S.W.3d 201
     (per curiam) (A claim
    of prosecutorial misconduct for failure to disclose evidence, standing alone, was not a ground
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    for postconviction relief under Rule 37.1 as the issue could have been raised at trial.).
           Finally, appellant raised in his petition allegations that his trial attorney was ineffective,
    asserting that the claims should be considered “individually and collectively.” The concept of
    cumulative error, however, is not recognized in Rule 37.1 proceedings when assessing whether
    a petitioner was afforded effective assistance of counsel. Bryant v. State, 
    2013 Ark. 305
    429 S.W.3d 193
     (per curiam); State v. Hardin, 
    347 Ark. 62
    60 S.W.3d 397
     (2001) (holding that it was
    reversible error for the trial court to consider cumulative error in assessing claims of ineffective
    assistance of counsel).
           When considering an appeal from a trial court’s denial of a Rule 37.1 petition based on
    ineffective assistance of counsel, the sole question presented is whether, based on a totality of
    the evidence under the standard set forth by the United States Supreme Court in Strickland v.
    466 U.S. 668
     (1984), the trial court clearly erred in holding that counsel’s
    performance was not ineffective. Taylor v. State, 
    2013 Ark. 146
    427 S.W.3d 29
           The benchmark for judging a claim of ineffective assistance of counsel must be “whether
    counsel’s conduct so undermined the proper functioning of the adversarial process that the trial
    cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686. Pursuant to
    Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner
    raising a claim of ineffective assistance must show that counsel made errors so serious that
    counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment
    to the United States Constitution. Caery, 
    2014 Ark. 247
    ; Williams v. State, 
    369 Ark. 104
    251 S.W.3d 290
     (2007). There is a strong presumption that trial counsel’s conduct falls within the
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    wide range of professional assistance, and an appellant has the burden of overcoming this
    presumption by identifying specific acts or omissions of trial counsel, which, when viewed from
    counsel’s perspective at the time of the trial, could not have been the result of reasonable
    professional judgment. Henington v. State, 
    2012 Ark. 181
    403 S.W.3d 55
    ; McCraney v. State, 
    2010 Ark. 96
    360 S.W.3d 144
     (per curiam). Second, the petitioner must show that counsel’s deficient
    performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Holloway v.
    2013 Ark. 140
    426 S.W.3d 462
    . A petitioner making an ineffective-assistance-of-counsel
    claim must show that his counsel’s performance fell below an objective standard of
    reasonableness. Abernathy v. State, 
    2012 Ark. 59
    386 S.W.3d 477
     (per curiam). The petitioner
    must show that there is a reasonable probability that, but for counsel’s errors, the fact-finder
    would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been
    different absent the errors. Breeden v. State, 
    2014 Ark. 159
    432 S.W.3d 618
     (per curiam). A
    reasonable probability is a probability sufficient to undermine confidence in the outcome of the
    trial. Id. The language, “the outcome of the trial,” refers not only to the finding of guilt or
    innocence, but also to possible prejudice in sentencing. Id. Unless a petitioner makes both
    showings, it cannot be said that the conviction resulted from a breakdown in the adversarial
    process that renders the result unreliable. Id. “[T]here is no reason for a court deciding an
    ineffective assistance claim . . . to address both components of the inquiry if the defendant
    makes an insufficient showing on one.” Strickland, 466 U.S. at 697.
           Appellant contends that he was denied effective assistance of counsel because he did not
    agree with his attorney “for any continuances” and that he was not afforded due process as a
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    result. He suggests that the continuances caused him to be held in custody or on bail in excess
    of the time allowed for a speedy trial. If appellant intended the statement to be an allegation that
    counsel denied him his right to a speedy trial, he failed to provide any facts to support the claim.
    It is axiomatic that statements without factual support are not sufficient to satisfy the second
    prong under Strickland because conclusory claims do not demonstrate that there was prejudice
    to the defense. Chunestudy v. State, 
    2014 Ark. 345
    438 S.W.3d 923
     (per curiam). It is not enough
    to allege prejudice; prejudice must be demonstrated with facts. Stiggers v. State, 
    2014 Ark. 184
    433 S.W.3d 252
           Appellant argued in his petition that his attorney was ineffective in that counsel failed to
    conduct a thorough investigation of facts surrounding the charges and possible defenses. He
    contends that counsel should have found out whether certain drugs had truly come from the
    pharmacy that he was charged with burglarizing. The allegation does not establish a Strickland
    violation because appellant did not meet his burden of proving that, when the totality of the
    evidence was considered, there is a reasonable probability that, but for some error of counsel,
    the fact-finder would have had a reasonable doubt respecting guilt such that the jury’s decision
    would have been different absent the error. While counsel has a duty to make a reasonable
    investigation or to make a reasonable decision that renders particular investigations unnecessary,
    when a petitioner under Rule 37.1 alleges ineffective assistance for failure to perform an
    adequate investigation, he must delineate the actual prejudice that arose from the failure to
    investigate and demonstrate a reasonable probability that the specific materials that would have
    been uncovered with further investigation could have changed the outcome of the trial. Dixon
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    v. State, 
    2014 Ark. 97
     (per curiam). The burden is entirely on the claimant to provide facts that
    affirmatively support his or her claims of prejudice; neither conclusory statements nor allegations
    without factual substantiation are sufficient to overcome the presumption that counsel was
    effective, and such statements and allegations will not warrant granting postconviction relief.
    Anthony v. State, 
    2014 Ark. 195
     (per curiam).
           In addition to his allegations of error on the part of trial counsel, appellant also
    contended that counsel on direct appeal was ineffective for failing to obtain an appellate ruling
    on the issue of whether the trial court should have granted a motion for mistrial when his
    criminal history and parole status were revealed to the jury. Appellant did not demonstrate that
    he was entitled to postconviction relief on the claim because he offered no facts to show that
    counsel’s decision not to ask for a mistrial under the circumstances was outside the bounds of
    reasonable professional judgment or that there was a ground for a mistrial, which is an extreme
    and drastic remedy to be resorted to only when there has been an error so prejudicial that justice
    cannot be served by continuing the trial. See Ellis v. State, 
    2014 Ark. 24
     (per curiam). The
    petitioner claiming ineffective assistance of appellate counsel bears the burden of demonstrating
    that there was an issue that would have been meritorious on direct appeal and would have
    resulted in relief from the judgment. State v. Rainer, 
    2014 Ark. 306
    440 S.W.3d 315
    . Appellant
    did not make that showing.
           Rodney Fletcher, pro se appellant.
           Dustin McDaniel, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., for appellee.