Rice v. State ( 2014 )

Cite as 2014 Ark. 230SUPREME COURT OF ARKANSAS
No. CR-12-577
LEON JACKSON RICE Opinion Delivered May 15, 2014
APPELLANT
PRO SE MOTIONS TO SUPPLEMENT
V. OR SETTLE THE RECORD, FOR
EXTENSION OF TIME TO FILE
BRIEF, AND FOR DEFAULT
STATE OF ARKANSAS JUDGMENT, AND “NOTIFICATION
APPELLEE AND CONSIDERATION TO THE
COURT”
[PULASKI COUNTY CIRCUIT COURT,
NO. 60CR-10-1733]
HONORABLE HERBERT T. WRIGHT,
JR., JUDGE
MOTIONS TO SUPPLEMENT OR
SETTLE THE RECORD DENIED;
APPEAL DISMISSED; MOTIONS FOR
EXTENSION OF TIME TO FILE
BRIEF AND DEFAULT JUDGMENT
AND “NOTIFICATION AND
CONSIDERATION TO THE COURT”
MOOT.
PER CURIAM
In 2010, appellant Leon Jackson Rice was found guilty by a jury in the Pulaski County
Circuit Court of possession of a controlled substance (cocaine) and resisting arrest, and he was
sentenced as a habitual offender to an aggregate term of 360 months’ imprisonment. The
Arkansas Court of Appeals affirmed. Rice v. State, CR-11-227 (Ark. App. Nov. 2, 2011)
(unpublished) (original docket no. CACR 11-227). In 2012, appellant timely filed in the circuit
court a verified, pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal
Cite as 2014 Ark. 230Procedure 37.1 (2010), asserting various allegations of ineffective assistance of counsel,
prosecutorial misconduct, and due-process violations. The circuit court denied the petition
without a hearing,1 and appellant timely lodged an appeal of that order in this court. Now
before us are appellant’s pro se motions to supplement or settle the record, for extension of time
to file brief, and for default judgment, as well as a pleading entitled “Notification and
Consideration to the Court,” in which appellant requests that this court grant relief on the
pending motions.
We previously granted appellant’s request to supplement the record and issued a writ of
certiorari to the circuit court to provide a supplemental record containing the transcript and
record of appellant’s plea-and-arraignment hearing held on June 16, 2010, that was referenced
in the order denying postconviction relief. Rice v. State, 2013 Ark. 167 (per curiam). We
acknowledged that, in his previous request, appellant referenced several documents in addition
to the transcript of the plea-and-arraignment hearing; however, we declined to include those
documents in the writ of certiorari issued to the circuit court because the trial court did not
reference the documents in its order. Id. In the pending motions to supplement or settle the
record now before us, appellant again seeks to have the record supplemented with documents
not referenced by the circuit court in its order denying postconviction relief. As was the case
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). Where the circuit court dismisses a Rule 37.1
petition 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 circuit court’s order denying
postconviction relief complies with the requirements of Rule 37.3.
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Cite as 2014 Ark. 230before, appellant has not demonstrated that the requested documents should be included in the
record on appeal. We therefore deny appellant’s motions to supplement or settle the record.
Because it is clear from the record that appellant could not prevail on appeal, we dismiss
the appeal, and appellant’s remaining motions and pleading 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).
In the Rule 37.1 petition, appellant alleged that trial counsel was ineffective for conspiring
with the prosecutor, failing to file motions, failing to “challenge alteration of charges,” and
failing to challenge probable cause. When considering an appeal from the denial of a Rule 37.1
petition, 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, ___
S.W.3d ___ (per curiam); Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. 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. Hickey, 2013 Ark. 237,
___ S.W.3d ___; Springs, 2012 Ark. 87, 387 S.W.3d 143. A petitioner making an ineffective-
assistance-of-counsel claim 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 claimant must overcome a strong presumption that counsel’s conduct falls within the wide
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Cite as 2014 Ark. 230range of reasonable professional assistance. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830.
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, ___ S.W.3d ___. 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. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (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. Springs, 2012 Ark. 87, 387 S.W.3d 143.
Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a
breakdown in the adversarial process rendering the result unreliable. Id. There is no reason for
a court deciding an ineffective-assistance-of-counsel claim to address both components of the
Strickland standard if the appellant makes an insufficient showing on one of the prongs. Id.(citing Strickland, 466 U.S. at 697).
As the circuit court found in its order, appellant’s claims of ineffective assistance do not
warrant relief as they are either refuted by the record or lack factual substantiation. The record
does not reflect that any charges were changed by the prosecutor,2 and appellant did not identify
in the petition which charges were changed by the prosecutor or the manner in which they were
changed. Nor does the record reflect that trial counsel failed to timely file a notice of appeal.
2
The record does reflect that the felony information was amended to include the charge
of second-degree battery; however, the amendment was made prior to trial, and appellant was
acquitted on this charge.
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Cite as 2014 Ark. 230Appellant’s remaining claims of ineffective assistance are conclusory in nature and lack any
factual substantiation. 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. Wedgeworth v. State, 2013 Ark. 119 (per curiam); Crain
v. State, 2012 Ark. 412 (per curiam). We have repeatedly held that conclusory claims are
insufficient to sustain a claim of ineffective assistance of counsel. Wedgeworth, 2013 Ark. 119;
Crain, 2012 Ark. 412; Reed v. State, 2011 Ark. 115 (per curiam).
The remaining claims contained in appellant’s petition concerned prosecutorial
misconduct and due-process violations. Specifically, appellant alleged, without any factual
substantiation, that the prosecutor “fabricated and falsified charges through alteration and
adding untruthful accounts,” conspired with the North Little Rock Police Department and
appellant’s court-appointed attorney to convict appellant on these “falsified” charges, and
withheld the name of one of the State’s witnesses. Appellant further alleged that the charges
against him were not supported by probable cause,3 that the criminal information did not apprise
him of the crimes with which he was charged, and that he was denied the opportunity to be
heard and to defend his case.
Not only are appellant’s claims conclusory and refuted by the record, but they are also
not cognizable in a Rule 37.1 proceeding. Appellant’s assertions of prosecutorial misconduct
3
Appellant’s arguments regarding the lack of probable cause seem to stem from his
misunderstanding that all criminal proceedings should have ceased when the arrest warrant was
recalled. It is apparent from the record, however, that the arrest warrant was recalled because
there was no need for its issuance. Service of the arrest warrant was waived on appellant’s behalf
at the plea-and-arraignment hearing.
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Cite as 2014 Ark. 230and due-process violations are allegations of trial error. See Hale v. State, 2011 Ark. 476 (per
curiam); Bell v. State, 2010 Ark. 65, 360 S.W.3d 98 (per curiam) (citing Viveros v. State, 2009 Ark.
548 (per curiam)). Such claims of trial error, even those of constitutional dimension, must be
raised at trial and on direct appeal. Hale, 2011 Ark. 476. Our postconviction rule does not
permit a direct attack on a judgment or substitute for an appeal. Hawthorne v. State, 2010 Ark.
343 (per curiam). The sole exception lies in claims raised in a timely petition that are sufficient
to void the judgment and render it a nullity. Id. Appellant did not establish with factual
substantiation that any claims of prosecutorial misconduct or of due-process violations raised
in the petition were sufficient to void the judgment in his case.
We will not reverse a circuit court’s decision granting or denying postconviction relief
unless that decision is clearly erroneous. Pankau v. State, 2013 Ark. 162; Banks v. State, 2013 Ark.
147. 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. A review of the
Rule 37.1 petition and the order reveals no error in the circuit court’s decision to deny relief.
Thus, appellant could not prevail if the appeal were permitted to proceed, and we dismiss the
appeal.
Motions to supplement or settle the record denied; appeal dismissed; motions for
extension of time to file brief and default judgment and “Notification and Consideration to the
Court” moot.
Leon Jackson Rice, pro se appellant.
Dustin McDaniel, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
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