Stover v. State , 489 S.W.3d 674 ( 2016 )

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SUPREME COURT OF ARKANSAS.
No. CR-15-336
Opinion Delivered April 14, 2016
CALVIN J. STOVER
APPELLANT
APPEAL FROM THE BENTON
V. COUNTY CIRCUIT COURT
[NO. 04CR-12-817]
STATE OF ARKANSAS
APPELLEE HONORABLE ROBIN F. GREEN,
JUDGE
AFFIRMED.
PER CURIAM
Pending before this court is an appeal from the denial of appellant Calvin J. Stover’s
pro se petition for postconviction relief filed pursuant to Rule 37.1 of the Arkansas Rules
of Criminal Procedure (2015). For the reasons set forth below, the trial court’s order
denying postconviction relief is affirmed.
Stover was convicted by a jury of possession of methamphetamine, being a felon in
possession of a firearm, and simultaneous possession of drugs and firearms. He was sentenced
to an aggregate term of 480 months’ imprisonment. His convictions and sentences were
affirmed on appeal by the Arkansas Court of Appeals. Stover v. State, 2014 Ark. App. 393,
437 S.W.3d 695. The mandate was issued on July 8, 2014.
Stover filed a timely verified postconviction petition on September 8, 2014,1 which
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The trial court noted that the postconviction petition was filed 61 days after the
mandate issued but found the delay was excused, as the 60th day to timely file his Rule 37.1
petition fell on a Sunday.
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alleged that the trial court was biased and that his two attorneys, Sarah Ashley and Scott
McElveen, failed to effectively represent him. The trial court did not conduct a hearing but
issued a written order, cited to the record, applied the standard enunciated in Strickland v.
Washington, 466 U.S. 668 (1984), and concluded that Stover’s ineffective-assistance-of-
counsel claims were not supported by the trial record and denied relief.
This court will not reverse the trial court’s decision granting or denying
postconviction relief unless it is clearly erroneous. Kemp v. State, 347 Ark. 52, 55, 60 S.W.3d
404, 406 (2001). 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
conviction that a mistake has been committed. Id.
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 the
totality of the evidence under the standard set forth by the United States Supreme Court in
Strickland, 466 U.S. 668, the trial court clearly erred in holding that counsel’s performance
was not ineffective. Taylor v. State, 2013 Ark. 146, at 5, 427 S.W.3d 29, 32.
Under the two-prong standard outlined in Strickland, to prevail on a claim of
ineffective assistance of counsel, the petitioner must show that (1) counsel’s performance
was deficient and (2) the deficient performance prejudiced his defense. Adkins v. State, 2015
Ark. 336, at 5–6, 336 S.W.3d 790, 795. The reviewing court must indulge in a strong
presumption that trial counsel’s conduct falls within the wide range of reasonable
professional assistance. Id. The petitioner claiming ineffective assistance of counsel has the
burden of overcoming this presumption by identifying specific acts or omissions of trial
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counsel, which, when viewed from counsel’s perspective at the time of the trial, could not
have been the result of reasonable professional judgment. Id.
The second prong requires a petitioner to show that counsel’s deficient performance
so prejudiced his defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark.
140, at 5, 426 S.W.3d 462, 467. Consequently, a 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. Breeden v. State, 2014 Ark. 159, at 2, 432 S.W.3d 618,
622 (per curiam). A reasonable probability is a probability sufficient to undermine
confidence in the outcome of the trial. 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. Airsman v. State, 2015 Ark. 409, at 3, 473 S.W.3d 549, 553–
54 (per curiam).
For his first point on appeal, Stover argues that, because he filed a grievance against
the trial judge with the Judicial Discipline and Disability Commission, a conflict of interest
arose that caused the trial judge to be biased. Stover argues that the trial judge should have
recused after the grievance had been filed. Allegations of judicial bias must be raised at trial
and addressed on direct appeal and are not cognizable in postconviction proceedings. Green
v. State, 2013 Ark. 455, at 8 (per curiam). Further, Stover’s allegations are conclusory in
that he fails to identify particular behavior on the judge’s part that prejudiced the outcome
of the trial. Conclusory allegations of trial error are not sufficient to warrant granting relief
under Rule 37.1. Id.
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Stover argues in his second point on appeal that both counsel had a conflict of interest
that allegedly arose when Stover filed complaints with the Public Defender Commission
against one of his attorneys, Sarah Ashley, which Stover contends created an irreconcilable
conflict that impaired the loyalty and the effective representation of both attorneys. Stover’s
bare contention that counsel were conflicted is insufficient to establish the existence of an
actual conflict of interest, which generally requires a showing that counsel was actively
representing the conflicting interests of third parties. Townsend v. State, 350 Ark. 129, 134,
85 S.W.3d 526, 528 (2002).
In the absence of an actual conflict, a petitioner alleging that counsel’s performance
was deficient due to another form of conflict must demonstrate a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different. Townsend, 350 Ark. at 134, 85 S.W.3d at 528 (citing Mickens v. Taylor, 535 U.S.
162 (2002)); Winfield v. Roper, 460 F.3d 1026, 1039 (8th Cir. 2006) (explaining that the rule
presuming prejudice has not been extended beyond cases in which an attorney has
represented more than one defendant). Therefore, as with any ineffective-assistance-of-
counsel claim, Stover had the burden of providing factual support to demonstrate that the
alleged conflict of interest adversely affected counsel’s performance. Bullock v. State, 353
Ark. 577, 582-83, 111 S.W.3d 380, 384 (2003).
In his Rule 37.1 petition, Stover failed to identify the specific acts or omissions of
counsel that resulted from the alleged conflict. The trial court properly found that Stover
had not set forth sufficient facts showing that counsel were disloyal and relied on the record
when it concluded that counsel took advantage of every opportunity to aid Stover.
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Although Stover on appeal adds additional factual allegations in support of his conflict claim
and seems to raise a new claim that the trial court erred when it refused to appoint other
counsel, we are precluded from addressing these new fact allegations and claims that are
raised for the first time on appeal. Thornton v. State, 2014 Ark. 113, at 2 (per curiam).
In his third point on appeal, Stover contends that counsel were ineffective when they
failed to move for a directed verdict on the basis that there was insufficient proof that he
possessed a usable amount of a controlled substance. This specific challenge to the
sufficiency of the evidence was raised on direct appeal and was found to have been waived.
Stover, 2014 Ark. App. 393, at 1, 437 S.W.3d at 697.
Stover alleges that he was prejudiced by the failure to preserve the issue because the
evidence was insufficient to show he possessed a usable amount of methamphetamine
because expert testimony established that the sample found in his possession contained
0.1736 grams of both methamphetamine and dimethyl sulfone, but that the specific amounts
of each substance contained in the sample could not be ascertained. However, the amount
of a diluent, such as dimethyl sulfone, discovered in a controlled substance does not negate
the criminality of its possession. See Ark. Code Ann. § 5-64-419(a)(b)(1)(A) (Supp. 2011)
(stating in pertinent part that it is unlawful to possess methamphetamine with an aggregate
weight including an adulterant or diluent in an amount that is less than two grams); see also
Jones v. State, 357 Ark. 545, 553, 182 S.W.3d 485, 489 (2004) (holding that a measureable
amount of methamphetamine includes the amount of the pure drug plus all adulterants).
Furthermore, we have concluded that possession of 100 milligrams constituted a usable
amount of methamphetamine. Jones, 357 Ark. at 553, 182 S.W.3d at 489. Here, the
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expert’s testimony established that Stover possessed more than 100 milligrams of
methamphetamine. Stover fails to demonstrate that had counsel preserved this issue for
appellate review, the appellate court would have found that the evidence was insufficient to
support the conviction. See Strain v. State, 2012 Ark. 42, at 3–4, 394 S.W.3d 294, 298 (per
curiam).
For his fourth point on appeal, Stover contends that counsel failed to object to the
State’s amendment of the criminal charges to include one count of simultaneous possession
of a weapon and a controlled substance. Stover asserts that he was prejudiced because he
was not made aware of the amendment until the day before his trial. The State, however,
is entitled to amend an information at any time before the case is submitted to the jury as
long as the amendment does not change the nature or the degree of the offense charged or
create an unfair surprise. Dodge v. State, 2014 Ark. 116, at 6 (per curiam). An amendment
may be properly quashed if it misleads or impedes a criminal defendant in making a defense.
Hoover v. State, 353 Ark. 424, 428, 108 S.W.3d 618, 620 (2003). The mere fact that an
amendment authorizes a more severe penalty does not change the nature or degree of the
crime. Stewart v. State, 338 Ark. 608, 612, 999 S.W.2d 684, 687 (1999). The record shows
that the prosecutor originally charged Stover with possession of a controlled substance and
possession of a weapon. Stover does not explain how the amended charge of simultaneous
possession of drugs and weapons changed the nature of the charges such that it impeded the
development of his defense or prejudiced the outcome of his trial. Hoover, 353 Ark. at 428,
108 S.W.3d at 620.
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Stover’s contention that he was unfairly surprised by the amended information is not
only conclusory but it is also contradicted by the record. The prosecutor amended the
information to add the additional charge on March 8, 2013, thirty-two days before Stover’s
trial on April 9, 2013. See DeAsis v. State, 360 Ark. 286, 294–95, 200 S.W.3d 911, 916,
(2005) (concluding that defendant was not prejudiced by an amendment that added
additional charges thirty-four days before trial). Moreover, the record shows that when
Stover was originally arrested, he was charged with simultaneous possession of drugs and a
weapon as reflected in documents prepared and filed by Benton County police officers. The
trial court did not clearly err when it concluded that this allegation of attorney error was
without merit because the amended information added one charge for which Stover had
been originally arrested and the amendment occurred 30 days before trial.
For his fifth point on appeal, Stover contends that counsel ineffectively failed to
challenge the underlying probable cause for an arrest warrant issued by Washington County,
which was executed by Benton County police officers who searched Stover incident to that
arrest and seized a weapon and a cigarette package containing methamphetamine. Stover
contends that counsel should have moved to suppress the drugs and weapon because the
charges that were filed in Washington County were subsequently dismissed which Stover
argues invalidated the arrest warrant, and which, in turn, invalidated the search performed
incident to that arrest. Stover’s arguments concerning the validity of the arrest warrant are
entirely conclusory. Stover fails to raise sufficient allegations establishing that the arrest
warrant was invalid other than to allege that the Washington County charges were
dismissed. We have held that jurisdiction to try the accused does not depend upon the
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validity of the arrest. See State v. Richardson, 373 Ark. 1, 3, 280 S.W.3d 20, 22, (2008) (citing
Singleton v. State, 256 Ark. 756, 757, 510 S.W.2d 283, 284 (1974)). The allegation that the
Washington County charges were dismissed does not, without more, establish that the
warrant served by the Benton County officers lacked probable cause or was otherwise
invalid. Stover’s conclusory allegations do not establish a meritorious ground to suppress
the evidence discovered in the search incident to the arrest.
In his sixth point on appeal, Stover argues that counsel were ineffective for failing to
obtain a ruling on a motion for mistrial that was made after it was discovered that Stover
had been wearing a prison-identification bracelet on his left arm while in the presence of
the jury panel. On direct appeal, the court of appeals refused to reach this issue because
counsel did not obtain a ruling on the mistrial motion from the trial court. Stover, 2014
Ark. App. 393, at 3–4, 437 S.W.3d at 698. The record demonstrates that Stover’s counsel
moved for a mistrial because of the prison-identification bracelet, and also because potential
jurors had seen Stover being escorted by a deputy sheriff. Without ruling on the motion,
the trial court ordered that the bracelet be removed and excused two potential jurors who
had seen Stover with the sheriff’s deputy.
The record shows that Stover was wearing the bracelet for a short time before it was
discovered and removed and that it was inconspicuous such that neither Stover’s counsel
nor the trial court noticed it until the prosecutor brought it to light. Stover insists that
counsel was ineffective in failing to preserve the bracelet issue for appeal and contends that,
due to counsel’s errors, he was “forced to stand trial in prison garb.” Briefly appearing
before potential jurors wearing a prison-identification bracelet does not constitute being
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forced to stand trial in prison garb. See Vance v. State, 2011 Ark. 243, at 33, 383 S.W.3d
325, 346 (a mistrial was not warranted when the sighting of the defendant in shackles and
prison garb outside the courtroom was brief and inadvertent, by less than all of the jurors).
Additionally, Stover does not establish that any member of the jury panel noticed the
bracelet or its significance in the short time that Stover was wearing it in their presence.
Even if a few jurors spotted the bracelet, the sighting was brief and inadvertent. Vance, 2011
Ark. 243, at 33, 383 S.W.3d at 346. Stover does not demonstrate that counsel failed to
preserve a meritorious issue on appeal. State v. Rainer, 2014 Ark. 306, at 13, 440 S.W.3d
315, 323. (per curiam).
In his seventh point on appeal, Stover alleges that counsel were ineffective for failing
to investigate and interview witnesses. In his argument on appeal, Stover names Kaneida
Rambo, Sheryl Crown, Gary Madrid, Renee Cook, and Candace Williams as witnesses
whom counsel failed to call in his defense. This court has held that it is incumbent on the
petitioner to name the witness, provide a summary of the testimony, and establish that the
testimony would have been admissible into evidence. Weatherford v. State, 363 Ark. 579,
586, 215 S.W.3d 642, 649 (2005).
Although Stover did not provide the names of these witnesses, nor did he provide a
summary of their anticipated testimony in his Rule 37.1 petition, the trial court referred to
a transcript of a pretrial hearing conducted on the day of trial and considered complaints
raised on the record by Stover that counsel had failed to subpoena Kaneida Rambo, Renee
Cook, and Gary Madrid. In assessing the attorney’s decision to not call a particular witness,
it must be taken into account that the decision is largely a matter of professional judgment
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that experienced advocates could endlessly debate. Sparks v. State, 2009 Ark. 260, at 2–3
(per curiam). Based on its review of the record, the trial court concluded that Stover’s
counsel “exhibited reasonable professional judgment in their stated reasons for not calling
these witnesses.” This conclusion is not clearly erroneous. With respect to Stover’s
allegations that counsel ineffectively failed to call Candice Williams and Sheryl Crown for
the purpose of presenting character evidence, we are precluded from addressing this
argument which was not raised below or considered by the trial court. Thornton, 2014 Ark.
113, at 2.
In his final point on appeal, Stover argues that the trial court erred when it denied
his claim for postconviction relief without a hearing. We have explained that Rule 37.3
clearly grants the trial court discretion to decide whether the files and records are sufficient
to address the petition without a hearing, and the trial court need not hold an evidentiary
hearing where it can be conclusively shown on the record, or the face of the petition itself,
that the allegations have no merit. Green v. State, 356 Ark. 59, 65, 146 S.W.3d 871, 877
(2003). Conclusory allegations that are unsupported by facts do not provide a basis for either
an evidentiary hearing or postconviction relief. Id. Because it is clear that the allegations
set forth in Stover’s Rule 37.1 petition were conclusory and unsupported by the record, the
trial court did not err when it denied relief without conducting an evidentiary hearing.
Affirmed.
Calvin J. Stover, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.
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