Flemons v. State , 505 S.W.3d 196 ( 2016 )

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SUPREME COURT OF ARKANSAS
No. CR-14-416
Opinion Delivered: December 15, 2016
AARON FLEMONS PRO SE APPEAL FROM THE
APPELLANT SEBASTIAN COUNTY CIRCUIT
V. COURT, FT. SMITH DISTRICT
[NOS. 66CR-11-491, 66CR-11-493;
STATE OF ARKANSAS 66CR-11-494; 66CR-11-977; 66CR-
APPELLEE 11-987]
HONORABLE STEPHEN TABOR,
JUDGE
AFFIRMED.
PER CURIAM
In 2012, a Sebastian County Circuit Court jury found appellant Aaron Flemons
guilty of three counts of delivery of cocaine and one count of delivery of a counterfeit
substance, and he received an aggregate sentence of 552 months’ imprisonment in the
Arkansas Department of Correction. The judgment reflected sentence enhancements for
Flemons’s habitual-offender status and, for the cocaine delivery charges, proximity to a
church or park. The Arkansas Court of Appeals affirmed the judgment. Flemons v. State,
2013 Ark. App. 239.
In separate proceedings later the same year, Flemons was also convicted of fleeing
apprehension and leaving the scene of a personal injury accident in Sebastian County Circuit
Court case number CR-11-987, and he received an aggregate sentence of 360 months’
imprisonment that was to run consecutively to the sentences imposed in the earlier
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conviction. The court of appeals also affirmed that judgment. Flemons v. State, 2013 Ark.
App. 280.
Flemons filed timely pro se petitions for postconviction relief under Arkansas Rule
of Criminal Procedure 37.1 (2015) as to both judgments, and he later filed amended
petitions in both matters. The trial court consolidated the proceedings, held a hearing on
the petitions, and entered a single order denying both petitions as amended. Flemons appeals
that order. We affirm.
On appeal, Flemons’s first three points challenge the trial court’s denial of his motions
for a continuance, for appointment of counsel, and for a copy of certain trial transcripts.
Flemons first asserts that the trial court erred in denying his two requests for a continuance
on the day of the Rule 37 hearing. Flemons contends that he was denied due process when
the court failed to grant a continuance because he had been given incorrect information by
the clerk’s office about the procedures for having subpoenas issued for his witnesses.
The general standard of review for an alleged error in denying a motion for
continuance is abuse of discretion. Green v. State, 2012 Ark. 19, 386 S.W.3d 413. Arkansas
Rule of Criminal Procedure 27.3 (2015) provides that a court shall grant a continuance only
on a showing of good cause and only for so long as is necessary, taking into account not
only the request or consent of the prosecuting attorney or defense counsel, but also the
public interest in prompt disposition of the case. The burden of establishing an abuse of the
trial court’s discretion is the appellant’s, and, in addition to demonstrating that the court
abused its discretion by denying the motion, the appellant must show prejudice that amounts
to a denial of justice. Riddell v. State, 2011 Ark. 21. When a motion for continuance is
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based on a lack of time to prepare, we consider the totality of the circumstances, and a lack
of diligence alone is sufficient cause to deny a continuance. Thomas v. State, 370 Ark. 70,
257 S.W.3d 92 (2007).
In this case, Flemons concedes facts that establish a lack of diligence, which is further
supported by the record of the proceedings. The trial court granted two earlier requests for
a continuance, one from each party. The second such order scheduled the hearing for
February 12, 2014. Flemons admitted in a motion that he filed January 9, 2014, that he
delayed taking any action to obtain witnesses or evidence because he had been confident
that his motion for appointment of counsel filed in November 2013, would be granted,
although it was not. He also asserted in his request to the trial court at the Rule 37 hearing
that he had delayed action because of his unfounded belief that the pending motion for
appointment of counsel would be granted. While he contends that he also delayed action
because he wished to amend the petition, both petitions were amended in November 2013.
At that time, Flemons was well aware of all allegations that he would need to support,
and he was in a position to seek the necessary subpoenas. Instead, he apparently chose to
gamble on the outcome of a pending motion, which he hoped would relieve him of that
responsibility. As the trial court explained in its rulings on Flemons’s motions made the day
of the hearing, his confusion over the clerk’s instructions for obtaining subpoenas may have
justified some delay if Flemons had acted with diligence to obtain the subpoenas after he
had allegedly been given incorrect or confusing information in August 2013. Instead,
Flemons did not act on that information until February 2014, shortly before the hearing
date and more than two months after he amended the Rule 37.1 petitions. Flemons’s lack
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of diligence as demonstrated by a delay of more than two months from the time that
Flemons had fully formulated his claims was sufficient cause for the trial court to deny the
motions for continuance.
Flemons next alleges error in the trial court’s denial of his motion for appointment
of counsel. Flemons contends that he was entitled to counsel to assist him in developing his
claims for the Rule 37 proceedings under the United States Supreme Court’s holdings in
Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013).
This court has rejected the argument that Martinez and Trevino require appointment of
counsel. Mancia v. State, 2015 Ark. 115, 459 S.W.3d 259. The trial court has discretion to
appoint counsel under Arkansas Rule of Criminal Procedure 37.3(b) (2015), and, in order
to demonstrate an abuse of discretion by the trial court in declining to appoint counsel, an
appellant must have made a substantial showing that his petition included a meritorious
claim. Walden v. State, 2016 Ark. 306 (per curiam). Flemons did not make such a showing,
and there was no abuse by the trial court in denying his motion for appointment of counsel.
Flemons also alleges error in the denial of his requests for a copy of the transcripts of
his trials. Indigency alone does not require a trial court to provide a petitioner with free
photocopying. Demeyer v. State, 2016 Ark. 9 (per curiam). To be entitled to a copy of a
transcript or other written material at public expense, a convicted defendant must
demonstrate to the court a compelling need for the transcript or other material to support a
specific allegation contained in a timely petition for postconviction relief. Id. Here,
Flemons pointed the trial court to no specific allegations for which there was a compelling
need for material from the transcript in order to develop his arguments. He alleged that one
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transcript was needed to identify inconsistencies in the confidential informant’s testimony,
but he failed to explain how these inconsistencies would support any specific issue in his
petition. Such vague, conclusory declarations did not provide a demonstration of the
compelling need required in order to support granting a request for a copy of the transcript.
Flemons’s remaining points on appeal are claims that the trial court erred in denying
postconviction relief by failing to find ineffective assistance of counsel. This court will not
reverse a trial court’s decision granting or denying postconviction relief unless it is clearly
erroneous. Houghton v. State, 2015 Ark. 252, 464 S.W.3d 922; Kemp v. State, 347 Ark. 52,
60 S.W.3d 404 (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. Turner v. State, 2016 Ark. 96, 486
S.W.3d 757.
When considering an appeal from a denial of a Rule 37.1 petition based on
ineffective-assistance-of-counsel claims, 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 v. Washington, 466 U.S. 668 (1984), the trial court clearly erred in finding that
counsel 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. Id.
Our standard for ineffective-assistance-of-counsel claims is the two-prong analysis set
forth in Strickland. Rasul v. State, 2015 Ark. 118, 458 S.W.3d 722. Under that standard, to
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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. Mister v. State, 2014 Ark. 446. Unless a petitioner makes both showings, the
allegations do not meet the benchmark on review for granting relief on a claim of ineffective
assistance. Houghton, 2015 Ark. 252, 464 S.W.3d 922.
Counsel is presumed effective, and allegations without factual substantiation are
insufficient to overcome that presumption. Henington v. State, 2012 Ark. 181, 403 S.W.3d
55. A petitioner claiming deficient performance must show that counsel’s representation
fell below an objective standard of reasonableness, and this court must indulge in a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance. Id. A petitioner has the burden of overcoming the presumption that counsel is
effective by identifying specific acts and omissions that, when viewed from counsel’s
perspective at the time of trial, could not have been the result of reasonable professional
judgment. Id.
Flemons initially asserts in only general, conclusory terms that the trial court
committed error as to all of Flemons’s ineffective-assistance claims in his two petitions,
reasserting his arguments in the previous points on appeal. For the reasons already noted,
Flemons’s previously asserted claims fail. The remainder of Flemons’s argument in this first
point alleging ineffective assistance of counsel consists of only conclusory statements.
Allegations of bare conclusions do not overcome the presumption of trial counsel’s
competence. Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783. Where an appellant does
not allege in what regard the trial court’s rulings on ineffective-assistance claims were clearly
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erroneous, his arguments fail because conclusory statements cannot be the basis of
postconviction relief. Id.
In Flemons’s next point on appeal, he contends that trial counsel was ineffective
because she failed to adequately investigate the procedures used by the drug-task-force
officers in conducting the controlled buys that resulted in the drug charges and convictions
and because counsel did not, prior to trial, interview Greg Napier, the officer who
conducted the search of the confidential informant (“CI”) who carried out the controlled
buys. Flemons alleged that counsel failed to obtain the relevant policies and that, had she
done so, she could have more effectively cross-examined the witnesses and challenged the
search procedures used. Flemons’s argument fails because he did not demonstrate that a
more probing investigation would have changed the outcome of the trial.
A claimant must show that there is a reasonable probability that the fact-finder’s
decision would have been different absent counsel’s alleged errors in order to meet the
second prong of the Strickland test. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883. A
reasonable probability is a probability sufficient to undermine confidence in the outcome of
the trial. Id. In reviewing an assertion of ineffective assistance of counsel based on failure
to investigate, a petitioner must describe how a more searching pretrial investigation would
have changed the results of his trial. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895. The
burden is entirely on the claimant to provide facts that affirmatively support his claims of
prejudice. Id.
As the trial court found, trial counsel thoroughly cross-examined the witnesses at trial
concerning the procedures used to search the CI. Counsel brought out a number of issues
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with the search methodology used, and Flemons did not show that pointing to any particular
variation from an established policy would have made the challenge any more effective or
that counsel would have learned anything of significance from an interview with the officer
who conducted the search. As a consequence, Flemons failed to demonstrate a reasonable
probability that the jury’s decision would have been different absent counsel’s alleged errors.
Flemons therefore failed to meet his burden to demonstrate prejudice for his claim that
counsel was ineffective for the failure to investigate.
In his next point on appeal, Flemons contends that trial counsel was ineffective for
not raising a defense of entrapment and for not having the jury instructed on that defense.
The trial court found that counsel had made a strategic decision not to pursue the defense.
Under Arkansas Code Annotated section 5-2-209 (Repl. 2013), a defendant may
raise an affirmative defense that he was entrapped into committing an offense when a law-
enforcement officer or any person acting in cooperation with a law-enforcement officer
induces the commission of an offense by using persuasion or other means likely to cause a
normally law-abiding person to commit the offense. The statute provides that conduct
merely affording a person an opportunity to commit an offense does not constitute
entrapment. Ark. Code Ann. § 5-2-209(b)(2). This court has held that a defendant may
request jury instructions on entrapment when there is sufficient evidence to support the
instruction even though the defendant denies an element of the charge. Smoak v. State,
2011 Ark. 529, 385 S.W.3d 257. As noted in Smoak, the two theories of defense are
inconsistent, however.
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Counsel testified at the Rule 37 hearing that she made a strategic decision not to use
an entrapment defense. She explained that she believed the defense was, as a practical
matter, impossible to prove, and she indicated that she did not want to risk having evidence
of Flemons’s past drug use brought in to counter an entrapment defense. Counsel brought
out through testimony that the CI had asked to meet at the park, and she testified that she
believed that this evidence may have helped the jury conclude that the minimum
enhancement for the proximity enhancements was appropriate. Counsel did not believe
that there was sufficient evidence to support entrapment as to the delivery charges. Because
no drugs or buy money were found in Flemons’s possession, she believed the innocence
defense that she elected to utilize instead was a stronger defense.
When a decision by trial counsel is a matter of trial tactics or strategy and that decision
is supported by reasonable professional judgment, then such a decision is not a proper basis
for relief under Rule 37. Van Winkle v. State, 2016 Ark. 98, 486 S.W.3d 778. It is well
settled that trial counsel’s decisions regarding what theory of the case to pursue represent
the epitome of trial strategy. Id. Here, Flemons contends that the decision not to utilize
an entrapment defense was not reasonable. He contends that it was not necessary for him
to testify to present an entrapment defense, that his prior convictions may not have been
admissible, and that, because evidence of entrapment concerning the proximity
enhancement was admitted, the jury should have been instructed as to the defense.
Even if Flemons may have been entitled to a jury instruction on entrapment, his
attorney was not ineffective simply for failing to request the instruction. This court has
recognized that an “all-or-nothing” approach in the decision not to request instructions on
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lesser-included offenses is not unreasonable simply because the strategy fails. Feuget v. State,
2015 Ark. 43, 454 S.W.3d 734. The circumstances here are similar. Counsel explained her
reasons for not pursuing an inconsistent defense to what she believed was a relatively strong
innocence defense. Flemons failed to show that a decision by trial counsel not to dilute the
impact of a stronger defense with jury instructions on an inconsistent defense or the
presentation of confusing argument about such a defense was unreasonable. The trial court,
therefore, was not clearly erroneous in denying postconviction relief on this issue.
In Flemons’s final point concerning the judgment on the drug charges, he alleges
error by the trial court in finding that Flemons’s claim that the prosecutor withheld
information concerning Officer Napier’s personnel file was not cognizable. Flemons
contends that he was entitled to raise any constitutional issue in the Rule 37 proceedings.
He was not.
With the exception of fundamental error that renders the judgment void and subject
to collateral attack, it is not appropriate to raise trial error, including constitutional errors,
for the first time in a Rule 37 proceeding. Howard v. State, 367 Ark. 18, 238 S.W.3d 24
(2006). We have held allegations of prosecutorial misconduct to be the type of issue that
should have been raised on direct appeal and therefore may not be raised for the first time
in Rule 37 proceedings. Id. Direct challenges, including allegations such as prosecutorial
misconduct, are not cognizable in Rule 37 proceedings. Wood v. State, 2015 Ark. 477, 478
S.W.3d 194. Even an allegation that evidence was withheld by the prosecution in violation
of Brady v. Maryland, 373 U.S. 83 (1963), may not constitute fundamental error that would
render the judgment subject to collateral attack so as to be cognizable in Rule 37
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proceedings if the issue was one that could have been raised at trial or on direct appeal.
Frazier v. State, 2016 Ark. 55, 482 S.W.3d 305 (per curiam).
In this case, even assuming that Flemons’s claim that the prosecution withheld
evidence could be construed as an allegation of fundamental error and not one that could
have been raised at trial or on appeal, he included only conclusory statements in the petition
without a factual basis sufficient to raise a Brady violation. A petitioner under Rule 37.1 has
the burden of pleading facts to support his claims, and conclusory allegations that are
unsupported by facts do not provide a basis for an evidentiary hearing on the claim or for
postconviction relief. Henington, 2012 Ark. 181, 403 S.W.3d 55. Flemons failed to identify
any specific information that was contained in the personnel file, and he therefore failed to
allege any factual basis in support of his claim that the file may have been used to impeach
Napier. Such conclusory statements cannot be the basis of postconviction relief.
Turning to Flemons’s allegations of ineffective assistance of counsel concerning the
judgment of conviction for fleeing apprehension and leaving the scene of a personal injury
accident in case number CR-11-987, his first two points on appeal assert that trial counsel
was ineffective for failing to timely object to Flemons’s appearing in front of the jury in
restraints and for failing to request a cautionary instruction in that regard. The record from
the direct appeal indicates that there was a discussion between Flemons and the judge before
the jury panel was brought in.1 Flemons notes that the judge encouraged him to change
1
We may take judicial notice of the record from the earlier appeal without need to
supplement the record. Adkins v. State, 2015 Ark. 336, 469 S.W.3d 790 (per curiam). At
Flemons’s request, the trial court admitted into evidence at the Rule 37 hearing the abstract
from Flemons’s attorney’s brief on direct appeal in order to better illustrate these facts.
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into civilian dress but that there was no specific discussion of the restraints until a later
conversation, after the State rested its case, concerning whether Flemons would testify.
During the Rule 37 hearing, co-counsel testified that she and the lead attorney had
tried to persuade Flemons to change into civilian clothes before going into the court room.
They had explained that, if he would do so, there was a leg-brace restraint that should fit
under the civilian clothes and would not be visible to the jury. Flemons refused, and he
continued to refuse to change into civilian clothing when brought into the court room.
After counsel objected to Flemons’s appearing in his jail clothes, without any mention of
the restraints, the judge cautioned Flemons that his actions would be considered a waiver
and that, because he had declined the invitation to change into civilian clothing, he would
be considered to have chosen to appear before the jury “as he is.”
When Flemons was asked, after the State rested, whether he wished to testify, he
initially responded that he could not do so because he was shackled. After some discussion
in which Flemons continued to be uncooperative in responding to questions, his attorney
admitted that she had not previously objected specifically to the restraints and moved for a
mistrial on the bases that Flemons was dressed in prison garb and that he was in restraints.
The motion was denied. Counsel then moved for an instruction regarding the jail attire,
and the court agreed to provide one. The instruction given addressed both Flemons’s
clothing and the restraints and cautioned the jury to disregard those facts during their
deliberations.
In its order denying postconviction relief, the trial court found that counsel had
objected to the restraints and that Flemons had failed to demonstrate any prejudice from his
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counsel’s failure to request a curative instruction on the restraints. The court also noted that
Flemons should not be permitted to complain of prejudice resulting from his own willful
behavior and commented that a failure to draw further attention to Flemons’s obstinateness
may not have been beneficial but did not rise to the level of prejudice to support Flemons’s
claim.
Even if, as Flemons maintains, counsel was late in objecting to the restraints or failed
to request an appropriate jury instruction, he has not demonstrated prejudice from those
actions to satisfy the second prong of the Strickland standard. This court has held that a
defendant cannot be allowed to abort a trial and frustrate the process of justice by his own
acts. Britton v. State, 2014 Ark. 192, 433 S.W.3d 856. The evidence at the Rule 37 hearing
was that Flemons refused to change into civilian clothing even after it was explained to him
that this change would allow him to wear restraints that would not be visible to the jury.
Flemons offers only his own irritation for being shackled as an excuse for his lack of
cooperation, and, Flemons has not shown that, had counsel also timely objected to Flemons
appearing before the jury in the restraints, the objection would have been any more
successful than the motion concerning the jail clothing or the motion for mistrial. As for
counsel’s failure to request that the cautionary jury instruction include an admonition about
the restraints, the instruction did include such an admonition. Because Flemons failed to
demonstrate that he was prejudiced by the alleged deficient performance, the trial court was
not clearly erroneous in denying relief on these issues.
Flemons next asserts that counsel was ineffective for failing to investigate his mental
state as a defense to the charges. On appeal, Flemons contends that counsel should have
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discovered a determination by an administrative law judge that Flemons was disabled and
had been diagnosed with impulse-control disorder. We need not address this issue.
In his Rule 37.1 petition, Flemons alleged that counsel had failed to adequately
investigate the case, but Flemons did not include the argument raised on appeal in his
petition. Flemons did raise the issue during the Rule 37 hearing, but, to the extent that
Flemons may have sought to amend his petition during the hearing to include the new issue,
he did not obtain the trial court’s permission to do so. See Adams v. State, 2013 Ark. 174,
427 S.W.3d 63 (holding that under Arkansas Rule of Criminal Procedure 37.2(e), the trial
court had discretion to deny leave to amend a petition); see also Weaver v. State, 339 Ark.
97, 3 S.W.3d 323 (1999) (holding that the trial court did not abuse its discretion in denying
an effort to amend on the day of the Rule 37 hearing in order to add a new claim). Even
if Flemons had been granted leave to amend his petition to include the claim, he failed to
obtain a ruling on it. Van Winkle v. State, 2016 Ark. 98, 486 S.W.3d 778 (holding that an
argument was not preserved for appellate review and this court was precluded from review
on appeal where the trial court had not provided a ruling on the argument).
In Flemons’s next point on appeal, he alleges ineffective assistance of counsel for
failure to investigate and present mitigation evidence for sentencing. The trial court found
that counsel had investigated and considered possible mitigating evidence and then made a
strategic decision not to use that evidence. On appeal, Flemons contends that counsel did
not conduct an adequate investigation in order to make such a decision and that counsel
could have presented evidence of Flemons’s mental state as described in the disability
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determination noted in the previous point by calling the doctor who had diagnosed him
with an impulse-control disorder.
In cases where the defendant was not subject to the possibility of the death penalty,
the failure to investigate, discover, and present mitigating evidence is not deemed ineffective
assistance of counsel. State v. Smith, 368 Ark. 620, 249 S.W.3d 119 (2007). Although
Flemons received the maximum sentence possible on the charges in this case, the Strickland
standard must nevertheless be satisfied, as with any other allegation of ineffective assistance
of counsel for failure to investigate, and a petitioner must demonstrate that a more searching
pretrial investigation would have changed the results of his trial. Wertz, 2014 Ark. 240, 434
S.W.3d 895. The trial court found that trial counsel had investigated mitigating evidence
and made a strategic decision not to present any. As previously noted, when a decision by
trial counsel is a matter of trial tactics or strategy and that decision is supported by reasonable
professional judgment, then such a decision is not a proper basis for relief under Rule 37.
Van Winkle, 2016 Ark. 98, 486 S.W.3d 778.
Flemons does not now dispute that counsel made an investigation of possible
mitigating evidence or that counsel was aware of his diagnosis with an impulse-control
disorder. Instead, he contends that counsel’s strategic decision not to further investigate this
evidence and call the doctor who diagnosed him was unreasonable. Trial counsel testified
that, in her professional experience, the twelve previous felony convictions that Flemons
had at the time of this trial would have outweighed any mitigating evidence that may have
been available. Specifically, she noted that evidence concerning Flemons’s diagnosis was
not likely, in her professional opinion, to have been beneficial in this case and may instead
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have been damaging. We cannot say that the trial court was clearly erroneous in finding
that counsel’s decision fell within the wide range of reasonable professional assistance.
Flemons next alleges that appellate counsel was ineffective for failing to raise an
argument on appeal challenging the sufficiency of the evidence based on the motion for
directed verdict that was made on the fleeing charge. In the direct appeal, the court of
appeals noted that the argument that had been made in the motion for directed verdict as
to the fleeing-apprehension charge was different from the argument made for leaving the
scene of an injury accident. Flemons, 2013 Ark. App. 280. On appeal, the argument as to
both charges was that there was not sufficient evidence that Flemons drove the car. At trial,
the argument concerning the fleeing-apprehension charge had been that there was
insufficient evidence that the driver of the vehicle knew that his apprehension was
imminent. Flemons is correct that the trial court erroneously found that the court of appeals
had disposed of that argument on appeal.
Nevertheless, the trial court was not clearly erroneous to deny postconviction relief
on this claim. We will affirm a trial court’s decision if it reached the right result, albeit for
the wrong reason. Jones v. State, 347 Ark. 409, 64 S.W.3d 728 (2002). Counsel is not
ineffective for failing to make a motion or argument that is without merit. Watson v. State,
2014 Ark. 203, 444 S.W.3d 835. Had appellate counsel raised the challenge to the
sufficiency of the evidence that had been raised at trial, the challenge would have failed.
The testimony at trial was that three officers were conducting a sobriety checkpoint.
When Flemons came to the checkpoint, one of the officers came up to the car and asked
Flemons for his driver’s license. Flemons stated that he did not have it with him, and the
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officer instructed Flemons to move to the right shoulder. Flemons pulled the car over, but
as the officer approached it, he sped off. These facts are sufficient to establish that Flemons
knew that his immediate arrest or detention was being attempted by a duly authorized law-
enforcement officer, and a challenge to the sufficiency of the evidence on the basis raised in
the motion for directed verdict would have failed if raised on appeal. See Ark. Code Ann.
§ 5-54-125(a) (Repl. 2016).
Finally, Flemons urges this court to reconsider its stance regarding cumulative error.
This court does not recognize cumulative error in allegations of ineffective assistance of
counsel. Turner v. State, 2016 Ark. 96, 486 S.W.3d 757. It is reversible error for the trial
court to consider cumulative error in its analysis of claims of ineffective assistance of counsel
under the Strickland test. State v. Hardin, 347 Ark. 62, 60 S.W.3d 397 (2001). A party asking
this court to overrule a prior decision such as this has the burden of showing that our refusal
to overrule the prior decision would result in injustice or great injury. Houghton, 2015 Ark.
252, 464 S.W.3d 922. Although Flemons contends that we have misinterpreted Strickland,
he develops no argument in that regard. As we did in Houghton, we decline to overrule our
previous decisions on this issue for that reason.
Affirmed.
Aaron A. Flemons, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee
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