Robinson v. State

2014 Ark. 310

439 S.W.3d 32

Ronald E. ROBINSON, Appellant.

v.STATE of Arkansas, Appellee.

No. CR–13–9.

Supreme Court of Arkansas.

June 26, 2014.

Ronald E. Robinson, pro se appellant.

Dustin McDaniel, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

Opinion

PER CURIAM.

In 2009, appellant Ronald E. Robinson was found guilty by a jury of two counts of attempted first-degree murder and two counts of first-degree battery. He was sentenced, with an enhancement for committing a felony with a firearm, to an aggregate term of 1620 months' imprisonment. The Arkansas Court of Appeals affirmed. Robinson v. State, 2010 Ark. App. 772, 2010 WL 4637772.

After the court of appeals issued its mandate on appeal, petitioner timely filed in the trial court a pro se verified petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009). The court entered an order denying the petition on December 28, 2011.¹ Petitioner did not timely file a notice of appeal from the order and sought leave from this court to proceed with a belated appeal. The motion was granted on the ground that appellant had not been informed that the order had been entered as required under Rule 37.3(d). Robinson v. State, 2013 Ark. 46, 2013 WL 485669 (per curiam).

On appeal from the order, appellant first argues that the trial court erred by denying Rule 37.1 relief without holding an evidentiary hearing and by adopting the law and reasoning contained in the State's response to the Rule 37.1 petition in its order. We find no error.

Arkansas Rule of Criminal Procedure 37.3 (2013) provides that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the petitioner is entitled to no relief. Anthony v. State, 2014 Ark. 195, 2014 WL 1716538 (per curiam); Lemaster v. State, 2013 Ark. 449, 2013 WL 5968938 (per curiam); Eason v. State, 2011 Ark. 352, 2011 WL 4092485 (per curiam); Hayes v. State, 2011 Ark. 327, 383 S.W.3d 824 (per curiam). When it denies a Rule 37.1 petition without an evidentiary hearing, the trial court “shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court's findings.” Ark. R.Crim. P. 37.3(a) ; see Eason, 2011 Ark. 352 ; Montgomery v. State, 2011 Ark. 462, 385 S.W.3d 189 (“[W]here no hearing is held on a Rule 37 petition, the trial court has an obligation to provide written findings that conclusively show that the petitioner is entitled to no relief.”). Here, the trial court's order adopted the law and reasoning for denying the petition that were contained in the State's detailed response to the petition. As the response covered the issues raised in the petition, and this court may affirm the denial of a Rule 37.1 petition, regardless of the adequacy of the order, if we can determine from the record that the petition was wholly without merit or when the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted, we find that the order was adequate. See Anthony, 2014 Ark. 195 ; see also Lemaster, 2013 Ark. 449 ; Montgomery, 2011 Ark. 462, 385 S.W.3d 189. From a review of the order, the State's response, the record, and the briefs filed in this appeal, appellant has not demonstrated that the trial court erred in denying the petition or in doing so without holding a hearing.

All the claims for relief contained in the Rule 37.1 petition were allegations that appellant did not have effective assistance of counsel at trial. 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 conviction that a mistake has been committed. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694.

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. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 104 S.Ct. 2052. 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. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). 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). There is a strong presumption that trial counsel's conduct falls within the 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. State, 2013 Ark. 140, 426 S.W.3d 462. 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, 104 S.Ct. 2052. As points for reversal of the order, appellant reiterates the claims raised in the Rule 37.1 petition. Initially, he argues that counsel should have made a more effective motion for directed verdict that included pointing out that the State failed to offer forensic proof that appellant fired a weapon. Specifically, appellant contends that the motion for directed verdict, which was founded on the argument that there was no credible evidence that appellant was the shooter, should also have included the fact that appellant's fingerprints were not on the bullets or the shell casings and that no test existed that could show that appellant was the assailant in the case.

When it is asserted that counsel was ineffective for the failure to make a motion or argument, the petitioner must show that the motion or argument would have been meritorious because the failure to make an argument that is meritless is not ineffective assistance of counsel. Conley, 2014 Ark. 172, 433 S.W.3d 234 (citing Mitchell v. State, 2012 Ark. 242, 2012 WL 1950257.). The victims, Michael Walker and Eric Washington, testified at trial that they were sitting in a car when appellant and Jeff Traylor arrived in another car. Shots were fired at the victims, and both victims sustained multiple gunshot wounds. Both men identified appellant as having shot them. Jeff Traylor also testified for the State that he was present when the shooting occurred but did not participate in it. A witness for the defense testified that he saw Traylor shoot at the victims but did not see appellant shooting.

Here, the victims identified appellant as the assailant, and their credibility was a matter for the jury to assess. Green v. State, 2013 Ark. 497, 430 S.W.3d 729. It is evident from the verdict that the jury accepted the victims' account of the incident as being more credible than the evidence adduced by the defense. In light of the victims' identification of appellant, it cannot be said that a motion for directed verdict based on the failure of the State to produce proof of appellant's fingerprints on the bullets and the shell casings or based on the lack of a forensic test tying appellant to the shootings would have produced a favorable ruling on a motion for directed verdict. Appellant did not meet the Strickland standard for establishing ineffective assistance of counsel in that he did not show that counsel's conduct with respect to the motion for directed verdict so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

Appellant next contends that counsel was remiss in not impeaching Jeff Traylor's testimony at trial. He alleges that, prior to trial, an unnamed investigator taped an interview with Traylor in which Traylor said that appellant was not with him when the shootings occurred. Appellant faults counsel for not procuring a tape of the interview and using it...