Ingram v. State ( 2014 )

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SUPREME COURT OF ARKANSAS
No. CR-14-362
RICHARD INGRAM Opinion Delivered September 4, 2014
APPELLANT
PRO SE MOTIONS FOR WRIT OF
V. CERTIORARI TO COMPLETE THE
RECORD, FOR ACCESS TO
TRANSCRIPT, AND FOR EXTENSION
STATE OF ARKANSAS OF TIME TO FILE BRIEF
APPELLEE [JACKSON COUNTY CIRCUIT
COURT, NO. 34CR-10-144]
HONORABLE HAROLD S. ERWIN,
JUDGE
MOTION FOR WRIT OF CERTIORARI
TO COMPLETE THE RECORD
DENIED; APPEAL DISMISSED;
MOTIONS FOR ACCESS TO
TRANSCRIPT AND FOR EXTENSION
OF TIME TO FILE BRIEF MOOT.
PER CURIAM
In 2012, appellant Richard Ingram was found guilty by a jury in the Jackson County
Circuit Court of capital murder for the death of his twenty-three-month-old son, and he was
sentenced to life imprisonment without parole. This court affirmed. Ingram v. State, 2013 Ark.
446. In 2014, appellant timely filed a verified, pro se petition for postconviction relief pursuant
to Arkansas Rule of Criminal Procedure 37.1 (2012), asserting two claims of ineffective
assistance of counsel. The trial court denied the petition without a hearing,1 and appellant timely
1
Arkansas Rule of Criminal Procedure 37.3(c) provides that an evidentiary hearing should
be held in postconviction proceedings unless the files and record of the case conclusively show
that the prisoner is entitled to no relief. Eason v. State, 2011 Ark. 352 (per curiam); Hayes v. State,
2011 Ark. 327, 383 S.W.3d 824 (per curiam). When the trial court dismisses a Rule 37.1 petition
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lodged an appeal of that order in this court. Now before us are appellant’s pro se motions for
certiorari to complete the record, for access to the transcript, and for extension of time to file
brief.
In the motion for writ of certiorari to complete the record before us, appellant asks this
court to compel the circuit clerk to complete the record with six exhibits attached to a document
filed below that is part of the record on appeal. Four of the six exhibits are included in the
record as separately filed documents. Because appellant fails to demonstrate that the omitted
documents contain any specific information that is pertinent to the issues raised in the petition,
the motion for writ of certiorari is denied.
Because it is clear from the record that appellant could not prevail on appeal, we dismiss
the appeal, and appellant’s remaining motions are moot. An appeal of the denial of
postconviction relief will not be allowed to proceed when it is clear that the appellant could not
prevail. Holliday v. State, 2013 Ark. 47 (per curiam); Bates v. State, 2012 Ark. 394 (per curiam);
Martin v. State, 2012 Ark. 312 (per curiam).
A review of the petition and the order reveals no error in the trial court’s decision to deny
relief. 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 (1984), the trial court clearly erred in holding that counsel’s
without an evidentiary hearing, it “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. In the instant case, the trial court’s order denying
postconviction relief complies with the requirement of Rule 37.3.
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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. 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). 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. 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). 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. Howard
v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability sufficient
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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.
In his petition, appellant summarily alleged that, although a mental evaluation was
conducted to determine his competency to stand trial, counsel was ineffective for failing to move
for an evaluation to determine his “state of mind” at the time of the crime and whether he had
the capacity to appreciate the criminality of his conduct. Appellant also seemed to make the
conclusory allegation that counsel was remiss in not calling an expert witness to testify with
regard to his mental state at the time of the crime to support an “affirmative defense” that would
have resulted in a different outcome at trial.
Because appellant’s allegations were either not supported by the trial record or lacked
factual substantiation, relief is not warranted. While appellant alleged that counsel was remiss
in failing to seek a mental evaluation to determine his “state of mind” when the crime was
committed, a review of the trial record shows that the forensic evaluation ordered by the trial
court included a determination of whether, at the time of the alleged conduct, appellant had the
capacity for the culpable mental state to commit the crime and the capacity to appreciate the
criminality of his conduct. The examiner concluded that, at the time of the examination,
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appellant had the capacity to understand the proceedings against him, had the capacity to assist
effectively in his own defense, and did not have a mental disease or defect. The examiner
further concluded that, at the time of the alleged conduct, should the fact-finder conclude that
appellant committed the charged offense, appellant did not have a mental disease or defect, had
the capacity for the culpable mental state that is required to prove the charged offense, had the
capacity to appreciate the criminality of his conduct, and had the capacity to conform his
conduct to the requirements of law. At trial, counsel vigorously cross-examined the examiner
with regard to his findings and conclusions, and he consistently asserted the defense of mental
disease or defect.
To the extent that appellant alleged that counsel was ineffective based on the failure to
call an expert witness to support a defense based on a lack of mental capacity, appellant did not
allege in his petition what specific information could have been gleaned by an expert other than
the court-appointed forensic examiner that would have been favorable to the defense. While
appellant appeared to allege in a conclusory fashion that calling a different expert would have
produced a different result at trial, he failed entirely to provide any support for the claim that
another expert would have come to a different conclusion regarding his mental capacity. The
burden is entirely on the petitioner in a Rule 37.1 proceeding to provide facts that affirmatively
support the claims of prejudice. Thacker v. State, 2012 Ark. 205 (per curiam); Jones v. State, 2011
Ark. 523 (per curiam); Payton v. State, 2011 Ark. 217 (per curiam). Neither conclusory statements
nor allegations without factual substantiation are sufficient to overcome the presumption that
counsel was effective, nor do they warrant granting postconviction relief. Crain v. State, 2012
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Ark. 412 (per curiam); Kelley v. State, 2011 Ark. 175 (per curiam); Delamar v. State, 2011 Ark. 87
(per curiam); Eastin v. State, 2010 Ark. 275; Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per
curiam). We have repeatedly held that conclusory claims are insufficient to sustain a claim of
ineffective assistance of counsel. Reed v. State, 2011 Ark. 115 (per curiam); Wormley v. State, 2011
Ark. 107 (per curiam); Delamar, 2011 Ark. 87.
Appellant next alleged that counsel was ineffective for failing to present an “adversary
proceeding” and “mount a cultural defense.” He claimed that the outcome of the trial, or at
least the imposed sentence,2 would have been different if counsel had raised the argument that
he did not have the requisite mental state to commit the charged crime because he did not intend
to kill his son when he beat him but that his actions were instead an act of reprimanding his son,
as influenced by “cultural factors” regarding disciplinary measures. Appellant, however, did not
provide any information that would have established the existence of a “cultural defense” in this
case. Likewise, he failed to provide the names of witnesses or the substance of their testimony.
Appellant’s conclusory claim is not sufficient to satisfy Strickland because conclusory claims do
not demonstrate prejudice. See U.S. v. Ailemen, 710 F. Supp. 2d 960 (N.D. Cal. 2008).
Motion for writ of certiorari to complete the record denied; appeal dismissed; motions
for access to transcript and for extension of time to file brief moot.
Richard Ingram, pro se appellant.
No response.
2
While appellant referred in his petition to receiving a “death sentence,” he was sentenced
to life imprisonment without parole. Ingram, 2013 Ark. 446.
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