Liggins v. State

Cite as 2016 Ark. 432
SUPREME COURT OF ARKANSAS
No. CR-16-36
Opinion Delivered: December 8, 2016
EDWARD ANTHONY LIGGINS
APPELLANT
V. APPEAL FROM THE CRAIGHEAD
COUNTY CIRCUIT COURT
STATE OF ARKANSAS [NO. CR-2009-1147]
APPELLEE
HONORABLE CINDY THYER,
JUDGE
AFFIRMED.
HOWARD W. BRILL, Chief Justice
Appellant Edward Anthony Liggins appeals an order of the Craighead County
Circuit Court denying his petition for postconviction relief. For reversal, Liggins argues
that the circuit court erred in denying his ineffective-assistance claims (1) that appellate
counsel failed to appeal improper victim-impact testimony and an illegal sentence and (2)
that trial counsel failed to meet with him, provide copies of discovery, and communicate
about his case. We affirm the circuit court’s order.
I. Facts
On August 5, 2010, a Craighead County jury convicted Liggins of first-degree
murder of Tyrina Cornwell and first-degree battery of Germany Warren. The circuit court
sentenced Liggins to forty years’ imprisonment for the murder conviction with an
enhancement of fifteen years for using a firearm in the commission of a crime and an
additional enhancement of ten years’ imprisonment for committing the crime in the
presence of a child. His sentence and enhancements, which were to run consecutively,
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totaled an aggregate sentence of sixty-five years’ imprisonment. Liggins also received a
twenty-year sentence for the battery conviction to run concurrently with the sixty-five-year
sentence. Liggins appealed, and the court of appeals appointed new appellate counsel. See
Liggins v. State, 2014 Ark. App. 671. The court of appeals affirmed. See Liggins v. State,
2015 Ark. App. 321, 463 S.W.3d 331. Liggins filed a petition for postconviction relief
pursuant to Arkansas Rule of Civil Procedure 37.1, in which he asserted numerous claims
of ineffective assistance of counsel. After a two-day hearing, the circuit court denied
Liggins’s petition. He timely filed a notice of appeal and now raises the following arguments
before this court.
II. Rule 37 Appeal
On appeal, Liggins argues that the circuit court erred by denying his Rule 37 claims
that both appellate and trial counsel provided ineffective assistance. This court does not
reverse a denial of postconviction relief unless the circuit court’s findings are clearly
erroneous. E.g., Prater v. State, 2012 Ark. 164, 402 S.W.3d 68. A finding is clearly
erroneous when, although there is evidence to support it, after reviewing the entire
evidence, we are left with the definite and firm conviction that a mistake has been
committed. Id., 402 S.W.3d 68.
The criteria for assessing the effectiveness of counsel were enunciated by the Supreme
Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984). 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. E.g.,
Kemp v. State, 347 Ark. 52, 60 S.W.3d 404 (2001).
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Under the performance prong of the Strickland test, the petitioner must show that
counsel’s performance was deficient. E.g., Doty v. State, 2016 Ark. 341, ___ S.W.3d ___.
This factor requires a showing that trial 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., ___ S.W.3d ___. The courts acknowledge a strong
presumption that counsel’s conduct fell within the wide range of reasonable professional
assistance. Id., ___ S.W.3d ___. Accordingly, the petitioner has the burden of overcoming
this presumption by identifying specific acts or omissions of counsel, which, when viewed
from counsel’s perspective at the time of trial, could not have been the result of reasonable
professional judgment. Id., ___ S.W.3d ___.
Under the prejudice prong of Strickland, even if counsel’s conduct is shown to be
professionally unreasonable, the judgment will stand unless the petitioner can demonstrate
that the error had an actual prejudicial effect on the outcome of the proceeding. E.g., Luper
v. State, 2016 Ark. 371, ___ S.W.3d ___. The petitioner must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 3, ___ S.W.3d at ___ (quoting Strickland, 466 U.S. at 694). A
reasonable probability is a probability sufficient to undermine confidence in the outcome of
the trial. E.g., Taylor v. State, 2015 Ark. 339, 470 S.W.3d 271.
“Failure to make the required showing of either deficient performance or sufficient
prejudice defeats the ineffectiveness claim.” Strickland, 466 U.S. at 700. Accordingly, we
need not address the Strickland components in a particular order or even address both
components of the inquiry if the petitioner makes an insufficient showing on one. See
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Strickland, 466 U.S. at 697. The Court has stated that “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed.” Id.
A. Appellate Counsel
We first address Liggins’s two claims concerning the ineffective assistance of his
appellate counsel. Liggins contends that the circuit court erred in denying his claim that
appellate counsel was ineffective for failing to argue that a victim-impact witness improperly
recommended to the jury that Liggins receive the maximum sentence of life without parole.
The victim’s mother, Catherine Amiths, testified during the sentencing phase of
Liggins’s trial and stated, “It’ll never go away. And I just feel like he should have to go
through . . . he deserves a life without parole.” Liggins’s trial counsel moved for a mistrial.
The circuit court denied the motion and instructed the jury that “any recommendation of
family members as to a sentence of the defendant is improper and is not be considered by
you in determining the sentence of the defendant.” Liggins later asserted in his Rule 37
petition that his appellate counsel failed to raise the victim-impact issue on appeal. The
circuit court ruled that
[a]fter hearing all of the evidence relating to sentencing, the jury recommended that
the petitioner receive a term of years rather than a life sentence, and the court
sentenced him accordingly. . . . As such, no prejudice can be demonstrated by the
petitioner in this regard. Without a demonstration of prejudice, petitioner’s claim
must fail.
On appeal, Liggins argues that Miller v. State, 2010 Ark. 1, 362 S.W.3d 264, a death-
penalty case, supports his contention. In Miller, this court held that it was not proper for
witnesses to tell the jury what the appropriate penalty should be, stating that “penalty
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recommendations from family members of the victim are not relevant as victim-impact
evidence.” Id. at 32, 362 S.W.3d at 285 (quoting Greene v. State, 343 Ark. 526, 535, 37
S.W.3d 579, 586 (2001)). Such testimony would interfere with and be irrelevant to a jury’s
decision on punishment. Id., 362 S.W.3d 264. Here, Liggins’s case is distinguishable
because he did not receive a death sentence, and this court has stated that death is different.
See, e.g., State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999).
Moreover, it is unnecessary to discuss appellate counsel’s performance regarding the
victim-impact issue because Liggins did not establish that he was prejudiced. Pursuant to
Arkansas Code Annotated section 5-4-603(c) (Supp. 2013), the maximum sentence to
which Liggins could have been sentenced for his murder conviction was life without parole,
but Liggins received a sentence of forty years’ imprisonment for that conviction. Because
the jury did not impose the greater sentence, the victim-impact testimony was not
prejudicial. Thus, we hold that the circuit court properly concluded that Liggins failed to
demonstrate prejudice such that the outcome of his trial would have been different.
Accordingly, we affirm the circuit court’s ruling because Liggins cannot satisfy the second
prong of Strickland and any discussion of the first Strickland prong is unnecessary.
Next, Liggins asserts that the circuit court erred in denying his claim that appellate
counsel was ineffective for failing to argue that Liggins received an illegal sentence.
According to Liggins, Arkansas Code Annotated sections 5-1-103 and 5-4-104 prohibit a
sentence enhancement for his murder conviction.
Pursuant to Arkansas Code Annotated section 16-90-120 (Repl. 2016), Liggins
received an enhanced sentence of fifteen years’ imprisonment for possessing a firearm during
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the commission of first-degree murder. In Williams v. State, 364 Ark. 203, 217 S.W.3d 817
(2005), we held that sections 5-4-104(a) and 16-90-120(a)–(b) could be read harmoniously
to mean that section 16-90-120(a)–(b) was only a sentence enhancement, while the Arkansas
criminal code provides the minimum sentences to be imposed for each specific offense.
Thus, in light of our Williams holding, we conclude that Liggins’s appellate counsel was not
ineffective, and we affirm.
B. Trial Counsel
We also address Liggins’s ineffective-assistance claims concerning his trial counsel.
Liggins asserts that his trial counsel was ineffective because he met with him only three hours
before the trial; that he failed to provide copies of discovery; and that he failed to
communicate with him about the case.
Liggins raised these ineffective-assistance claims in a motion for new trial before the
circuit court. This court has stated that a motion for new trial, which raised some claims of
ineffective assistance of counsel, does not preclude the petitioner from later filing a Rule 37
petition if the claims are being raised for the first time. Huddleston v. State, 347 Ark. 226,
61 S.W.3d 163 (2001) (per curiam). Claims of ineffective assistance raised in a new-trial
motion are settled by the circuit court; however, claims not raised in the motion for new
trial are proper in Rule 37 proceedings. Id., 61 S.W.3d 163.
Here, the circuit court ruled on these claims when it denied Liggins’s motion for
new trial. The circuit court found “the testimony of Mr. DeProw [Liggins’s attorney] to
be credible and [found] the testimony of the defendant not to be credible.” The circuit
court stated that “counsel engaged in appropriate and meaningful discovery, . . . appeared
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in court with the defendant on several occasions; and met with the defendant on numerous
occasions.” The circuit court further stated that Liggins
did not agree with everything his counsel did or said on his behalf, but there is no
showing . . . that any decisions or actions . . . fell below an objective standard of
reasonableness . . . [or] that the outcome of the trial would have been different
especially considering the overwhelming evidence of [Liggins’s] guilt submitted at
trial.
Because the circuit court previously ruled on these issues in its order denying Liggins’s
motion for new trial, we are precluded from doing so on appeal. See Huddleston, 347 Ark.
226, 61 S.W.3d 163.
Affirmed.
Alvin L. Simes, P.A., by: Alvin L. Simes, for appellant.
Leslie Rutledge, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee
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