Ortega v. State , 533 S.W.3d 68 ( 2017 )

ROBIN F. WYNNE, Associate Justice

| , Appellant Thomas C. Ortega was convicted of rape and sentenced as, a habitual offender to life imprisonment. Ortega v. State, 2016 Ark. 372, 501 S.W.3d 824. Ortega timely filed a verified pro se postconviction petition pursuant to Arkansas Rule of Criminal Procedure 37.1 (2016), alleging grounds of prosecutorial misconduct, trial-court error, and ineffective assistance of counsel. The trial court denied relief, and Ortega lodged an appeal in this court from the denial of relief and has now filed a motion for extension of time to file his brief. Because it is clear that Ortega cannot prevail on appeal, we dismiss thé appeal, and Ortega’s motion is moot.

An appeal from an order that denied a petition for postconviction relief will not be permitted to go forward where it is dear that the" appellant could not prevail. Justus v. State, 2012 Ark. 91, 2012 WL 664259. 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, 260 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.

I. Prosecutorial Misconduct

In his Rule 37.1 petition, Ortega merely used the term “prosecutorial misconduct” without any supporting facts or argument. This courthas held that a claim of- prosecutorial- misconduct is “an issue that could have been raised at trial.” Howard v. State, 367 Ark. 18, 27, 238 S.W.3d 24, 32 (2006). Therefore, an issue of alleged prosecutorial misconduct is an issue that should have been raised at trial and on direct appeal and is not cognizable in a Rule 37.1 petition. To the extent- Ortega attempted to raise a claim of prosecutorial misconduct in his Rule 37.1, it is not cognizable.

II. Trial-Court Error

Ortega’s argument that the trial court abused its discretion when it found sufficient evidence.for the case to be presented to the jury under one of two alternative theories for rape — that he engaged in sexual intercourse or deviate sexual activity with another person by forcible compulsion or that the victim was incapable of consent because she was physically helpless — is also not cognizable in. a Rule 37.1 proceeding. Assertions of trial-court error., even those of constitutional , dimension, must be raised at trial and on direct appeal. See Howard, 367 Ark. at 26, 238 S.W.3d at 32; see also Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000). Furthermore, to the extent Ortega’s challenge here can be construed as a challenge to the sufficiency of the evidence or á claim of actual innocence, |ssuch a challenge is a direct attack on the judgment and is not cognizable in a Rule 37.1 proceeding. Scott v. State, 2012 Ark. 199, at 6, 406 S.W.3d 1, 4. The trial court properly denied relief, finding that any allegation of an abuse of discretion or trial-court error should have been raised before and was not the basis for Rule 87.1 relief.

III. Ineffective Assistance of Counsel

Ortega also argued that his trial counsel was .ineffective for failing to prepare or present the affirmative defense of “consen-tual sexes[,]” for failing to argue a specific basis on which the motion for directed verdict “could be so had as a matter of law[,]” and for failing to develop evidence that would have allowed the jury to weigh the reasonable hypothesis consistent with his innocence. These allegations do not support an ineffective-assistance-of-counsel claim.

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 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. Howard, 367 Ark. at 31-32, 238 S.W.3d at 35-36. 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. Id. 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 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. Id. Consequently, the petitioner must show 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. Id. 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. Id.

Although Ortega contends that his trial counsel did not present a defense for consensual sex, his argument fails. Consent may be a defense to a rape by forcible compulsion but cannot be a defense to a rape of a person who is physically helpless because he or she is, by definition, incapable of consent.¹ See State v. Parker, 2010 Ark. 173, 2010 WL 1507232. However, raising the defense of consent is a factual issue in a rape prosecution and should | fibe addressed at trial and on direct appeal. Id. at 5-6 (victim was physically helpless at the time of sexual intercourse making factual issue of consent irrelevant in rape prosecution). During Ortega’s direct appeal, he asked this court to make credibility determinations and argued that “substantial evidenced supported] an act of consensual sexual intercourse.” Ortega, 2016 Ark. 372, at 4, 501 S.W.3d at 827. Specifically, he argued that there was evidence that contraindicated forcible compulsion and that the evidence was insufficient to show that the “victim was too intoxicated to consent to sexual intercourse.” Id. at 4-5, 501 S.W.3d at 827. Trial counsel raised a consensual-sex defense, and the claim was addressed on direct appeal and failed.

Although Ortega claims counsel should have argued a specific basis in his motions for directed verdict so as to have them granted as a matter of law, this court noted that “defense counsel made a specific motion for directed verdict at the close of the State’s case, and renewed the motion at the close of all the evidence.” Ortega, 2016 Ark. 372, at 4, 501 S.W.3d at 826-27. Counsel cannot be found to be ineffective for failing to make an argument that is without merit. See Camargo v. State, 346 Ark. 118, 128, 55 S.W.3d 255, 262-63 (2001); see also Noel v. State, 342 Ark. 35, 44, 26 S.W.3d 123, 129 (2000). Trial counsel made the motions for directed verdict, and Ortega has failed to state any additional grounds for the motion that counsel should have or could have advanced to the trial court that would have resulted in a directed verdict for the defense.

Trial counsel’s failure to present evidence that would allow the jury to weigh a reasonable hypothesis consistent with his innocence was not ineffective assistance. A | ficonclusory claim without factual substantiation will not support a basis for postconviction relief. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55. Nevertheless, to the extent Ortega’s challenge here can be construed as a challenge to the sufficiency of the evidence or a claim of actual innocence, such a challenge is a direct attack on the judgment and is not cognizable in a Rule 37.1 proceeding. Scott, 2012 Ark. 199, at 6, 406 S.W.3d at 4; see Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000).

Regarding Ortega’s generalized claims that trial counsel was ineffective because the consensual-sex defense, directed-verdict motions, and failure-to-establish-evidence-of-actual-innocenee claim did not result in a different outcome at trial, Ortega fails to establish that counsel was ineffective. Where it is asserted that counsel was ineffective for failure to make an argument, the petitioner must show that the argument would have been meritorious because the failure to make an argument that is meritless is not ineffective assistance of counsel. Conley v. State, 2014 Ark. 172, 433 S.W.3d 234. Ortega failed to state the nature or scope of any argument that trial counsel should have made or any prejudice suffered. The trial court properly denied relief, and Ortega fails to demonstrate that he was entitled to postconviction relief.

Appeal dismissed; motion moot.

Wood, J., concurs. Hart, J., dissents.

1 . Ortega was charged and tried under alternate theories of rape. A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Ark. Code Ann. § 5 — 14— 103(a)(1) (Repl. 2013). A person also commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is incapable of consent because he or she is physically helpless. Ark. Code Ann. § 5 — 14—103(a)(2)(A).