Rowan v. State , 2014 Ark. LEXIS 454 ( 2014 )

Cite as 2014 Ark. 353
SUPREME COURT OF ARKANSAS
No. CR-14-537
Opinion Delivered September 4, 2014
KENNETH NEIL ROWAN
PETITIONER PRO SE MOTION FOR BELATED
APPEAL OF ORDER
V. [SEBASTIAN COUNTY CIRCUIT
COURT, FORT SMITH DISTRICT, NO.
STATE OF ARKANSAS 66CR-13-359]
RESPONDENT
HONORABLE JAMES O. COX, JUDGE
MOTION DENIED.
PER CURIAM
In 2013, petitioner Kenneth Neil Rowan entered a plea of guilty to aggravated robbery
in the Sebastian County Circuit Court in case no. 66CR-13-359.1 A sentence of 276 months’
imprisonment was imposed, and imposition of an additional term of 204 months’ imprisonment
was suspended.
On March 5, 2014, appellant filed in the trial court a timely, verified pro se petition for
postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013) in case no.
66CR-13-359. The petition was denied. Petitioner filed a “motion of appeal” in the trial court,
but he did not timely file a notice of appeal that complied with Rule 2(a)(4) of the Rules of
Appellate Procedure–Criminal (2013). Petitioner now seeks leave to proceed with a belated
appeal of the order.
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The sentencing order reflecting the conviction for aggravated robbery in 66CR-13-359
also reflects a plea of guilty to possession of a firearm by certain persons in case no. 66CR-13-
238.
Cite as 2014 Ark. 353
We need not consider the grounds contained in the motion for belated appeal because it
is clear from the record that appellant could not prevail if he were permitted to proceed with an
appeal. See Pruitt v. State, 2014 Ark. 258 (per curiam). An appeal from an order that denied a
petition for postconviction relief will not be permitted to go forward when it is clear from the
record that the appellant could not succeed. Caery v. State, 2014 Ark. 247 (per curiam) (citing
Williams v. State, 2014 Ark. 70 (per curiam)).
Petitioner alleged in his Rule 37.1 petition that his attorney was ineffective in that
counsel’s failure to secure the witnesses that petitioner requested left him with no choice but to
plead guilty. The witnesses he desired were described only as a psychiatrist, a psychologist, a
counselor, a parole officer, and two sheriff’s deputies. Petitioner also contended that his
psychiatric treatment and mental health were never properly addressed and that he was not
afforded a second opinion after he had been found competent at a time when he was taking
psychiatric medication.
In an appeal from a trial court’s denial of a claim of ineffective assistance of counsel under
Rule 37.1, the sole question presented is whether, based on the totality of the evidence, the circuit
court clearly erred in holding that counsel’s performance was not ineffective under the standard
set forth in Strickland v. Washington, 466 U.S. 668 (1984). Hickey v. State, 2013 Ark. 237, 438
S.W.3d 446 (per curiam). Under the two-prong Strickland test, a petitioner raising a claim of
ineffective assistance of counsel 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. Id. A petitioner making an ineffective-assistance-of-counsel claim
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must show that counsel’s performance fell below an objective standard of reasonableness. Dansby
v. State, 347 Ark. 674, 66 S.W.3d 585 (2002). In doing so, the petitioner must overcome a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830. The petitioner has the burden of
overcoming the presumption 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. Thompson v. State, 2013 Ark. 179 (per curiam).
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.
Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. To establish prejudice and prove that he was
deprived of a fair trial due to ineffective assistance of counsel, a petitioner who has pled guilty
must demonstrate a reasonable probability that, but for counsel’s errors, he would not have
entered a guilty plea and would have insisted on going to trial. Scott v. State, 2012 Ark. 199, 406
S.W.3d 1. A petitioner who has entered a guilty plea normally will have considerable difficulty
in proving any prejudice, as the plea rests upon an admission in open court that the petitioner did
the act charged. Id. A petitioner under Rule 37.1 must allege some direct correlation between
counsel’s deficient behavior and the decision to enter the plea. Id. The burden is entirely on a
petitioner in a Rule 37.1 proceeding to provide facts that affirmatively support a claim of
prejudice. Thompson, 2013 Ark. 179. Conclusory statements cannot be the basis of
postconviction relief. Meek v. State, 2013 Ark. 314 (per curiam). Unless a petitioner makes both
showings, it cannot be said that the conviction resulted from a breakdown in the adversarial
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process rendering the result unreliable. Springs v. State, 2012 Ark. 87, 387 S.W.3d 143.
Here, petitioner failed to demonstrate a reasonable probability that, but for counsel’s
errors, he would not have entered a guilty plea and would have insisted on going to trial.
Petitioner did not make the required showing of prejudice because his claims concerning the
witnesses that counsel failed to secure and his mental health were conclusory in nature.
If a defendant petitioning for postconviction relief alleges ineffective assistance of counsel
concerning the failure of counsel to secure a witness for trial, it is incumbent on the defendant
to name the witness, provide a summary of the testimony, and establish that the testimony would
have been admissible into evidence. See Wertz v. State, 2014 Ark. 340, ___ S.W.3d ___.
Petitioner contended only that he requested that counsel obtain a psychiatrist, a psychologist, a
counselor, a parole officer, and two sheriff’s deputies to serve as witnesses. None of the persons
was named, there was no summary of what the testimony of those persons would have been, and
no showing that the testimony of those persons would have been admissible.
With respect to the allegations that his competency was not properly addressed and that
he was not afforded a second opinion on his competency, petitioner did not offer supporting
facts to demonstrate that any specific issue related to his competency should have been raised by
counsel. It is the petitioner’s burden to provide facts from which it can be determined that
counsel did not meet the standard set by Strickland. Caery, 2014 Ark. 247.
When a defendant pleads guilty, the only claims cognizable in a proceeding pursuant to
Rule 37.1 are those that allege that the plea was not made voluntarily and intelligently or was
entered without effective assistance of counsel. See Scott v. State, 2012 Ark. 159 (per curiam).
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Petitioner’s claim that he was forced to plead guilty by counsel’s failure to obtain the witnesses
needed for trial and his claim concerning his competency fell far short of establishing that his plea
was not voluntarily and intelligently entered or that it was entered without effective assistance of
counsel. For that reason, petitioner could not prevail on appeal from the trial court’s order.
Accordingly, there is no good cause to permit a belated appeal.
Motion denied.
Kenneth Rowan, pro se petitioner.
No response.
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