Opinion
CR 08-1485
Opinion Delivered June 24, 2010
Appeal from the Circuit Court of Columbia County, CR 2006-211, Hon. Larry Chandler, Judge, Affirmed.
In 2007, a jury found appellant Shequita L. Joiner guilty of aggravated robbery and theft of property and sentenced her to an aggregate term of 480 months' imprisonment. The Arkansas Court of Appeals affirmed. Joiner v. State, CACR 08-151 (Ark . App. June 18, 2008) (unpublished). Appellant, who was represented by counsel, timely filed in the trial court a verified petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2010) that was denied. Appellant brings this appeal. We find no error and affirm.
In her Rule 37.1 petition, appellant alleged that she was not afforded effective assistance of counsel at trial. She contended that counsel failed to request a jury instruction on the need for corroboration of a confession and failed to make a proper and complete motion for directed verdict. On appeal, appellant argues that the court erred in not finding that counsel's errors were of such magnitude that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.
This court does not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous. Watkins v. State, 2010 Ark. 156, ___ S.W.3d ___(per curiam); Jamett v. State, 2010 Ark. 28, ___ S.W.3d ___ (per curiam) (citing Britt v. State, 2009 Ark. 569, ___ S.W.3d ___ (per curiam)). 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. Polivka v. State, 2010 Ark. 152, ___ S.W.3d ___; Jamett, 2010 Ark. 28, ___ S.W.3d ___; Anderson v. State, 2009 Ark. 493 (per curiam); Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007) (per curiam). In making a determination on a claim of ineffectiveness of counsel, the totality of the evidence before the fact-finder must be considered. Smith v. State, 2010 Ark. 137, ___ S.W.3d ___(per curiam); State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007).
In an appeal from a trial court's denial of postconviction relief on a claim of 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 (1984), the trial court clearly erred in holding that counsel's performance was not ineffective. Smith, 2010 Ark. 137, ___ S.W.3d ___; French v. State, 2009 Ark. 443 (per curiam); Small, 371 Ark. 244, 264 S.W.3d 512. Under the two-pronged Strickland test, a petitioner raising a claim of ineffective assistance must first 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. Harrison v. State, 371 Ark. 474, 268 S.W.3d 324 (2007); Barrett, 371 Ark. at 95-96, 263 S.W.3d at 546. In doing so, the claimant must overcome a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Barrett, 371 Ark. at 96, 263 S.W.3d at 546.
With respect to the second prong of the test, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he or she was deprived of a fair trial. Jamett, 2010 Ark. at 28; Walker v. State, 367 Ark. 523, 241 S.W.3d 734 (2006) (per curiam). Such a showing requires that the petitioner demonstrate a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.
Several witnesses testified at appellant's trial that she told them that she committed the aggravated robbery and theft of property. Appellant contends that the jury should have been instructed that evidence of her having confessed to the witnesses would not warrant a conviction absent proof that the offense was committed. She relies on Arkansas Code Annotated section § 16-89-111(d) (1987) which provides that a "confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed." In Tinsley v. State, 338 Ark. 342, 345, 993 S.W.2d 898, 900 (1999), we said that the requirement for other proof, sometimes referred to as the corpus delicti rule, mandates only proof that the offense occurred and nothing more. Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). Here, there was ample testimony that the offense occurred and that it was committed by appellant. Even if counsel could have requested a jury instruction on corroboration, appellant has not shown that she was prejudiced by the failure to do so. As appellant did not meet her burden of demonstrating that the outcome of the trial would have been different had the instruction been given, she has not established that the trial court erred in denying postconviction relief on the claim of ineffective assistance of counsel. Appellant had the burden to prove her allegations. Viveros v. State, 2009 Ark. 548 (2009) (per curiam). Actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the petitioner affirmatively prove prejudice. Barrett, 371 Ark. 91, 263 S.W.3d 542. Appellant did not plead facts in the petition to support the requisite showing of prejudice. At stated, counsel is presumed effective, and allegations without factual substantiation are insufficient to overcome that presumption. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001) (per curiam); see also Barrett, 371 Ark. at 96, 263 S.W.3d at 546. Conclusory assertions of error cannot be the basis of postconviction relief. Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003).
In regard to appellant's allegation that her attorney was remiss in not making a proper and complete motion for directed verdict, appellant points to the fact that the court of appeals in its opinion on direct appeal declined to reach portions of the argument concerning the directed verdict because the issues were raised for the first time on appeal. Specifically, the court of appeals said that appellant was arguing for the first time on appeal that witness testimony was contradicted by the physical evidence and that the evidence was purely circumstantial. While appellant contends that counsel erred by not making a motion for directed verdict that included claims that the testimony was not supported by physical evidence and was circumstantial, she failed entirely to show prejudice to the defense. She did not offer in the Rule 37.1 petition any substantiation for the claim that there were grounds for an expanded motion for directed verdict. While there may have been inconsistencies in the testimony regarding appellant's admissions that she committed the crime, taking into consideration the totality of the evidence presented at trial, there was substantial evidence of appellant's guilt. If there were grounds that should have been included in the motion for directed verdict that would have changed the outcome of the proceeding and thus met the second prong of the Strickland test of demonstrating prejudice, appellant was required to raise those grounds in the Rule 37.1 petition. See Wheat v. State, 297 Ark. 502, 763 S.W.2d 79 (1989) (per curiam). As she did not make such a showing of prejudice, she did not show that counsel was ineffective under the Strickland standard. Counsel is not ineffective for failing to make an argument that is meritless. Johnson v. State, 2009 Ark. 553 (per curiam).
Appellant next argues on appeal that the trial court erred in ruling on the Rule 37.1 petition a mere twenty-five days after it was filed. Appellant contends that the prompt action by the court denied her the opportunity to amend her petition to raise "other constitutional errors which came to counsel's knowledge after the filing of the petition." The nature of the constitutional errors is not otherwise explained, and appellant offers nothing to support the suggestion that the errors would have been cognizable in a Rule 37.1 proceeding. She also does not state that she filed a motion to amend the Rule 37.1 petition. More importantly, appellant advances no support for the implied claim that our postconviction rule somehow requires a circuit court to delay ruling on a petition to give the petitioner time to amend. Assertions without support are not cause to find that a court erred. Watkins v. State, 2010 Ark. 156, ___ S.W.3d ___ (per curiam). This court will not consider an argument with no citation to authority or convincing reasoning in its support, and where it is not apparent without further research that the argument is well taken. Id. (citing Weatherford v. State, 352 Ark. 324, 101 S.W.3d 227 (2003))
Finally, appellant contends that the trial court erred in denying the petition without first holding an evidentiary hearing. Arkansas Rule of Criminal Procedure 37.3(a) requires an evidentiary hearing in a postconviction proceeding unless the files and records of the case conclusively show that the petitioner is entitled to no relief. Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). A 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. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). Here, appellant failed to establish that the petition filed in the trial court contained a claim for relief that warranted an evidentiary hearing.
Affirmed.
CORBIN, J., not participating.