Stalnaker v. State

Cite as 2015 Ark. 250
SUPREME COURT OF ARKANSAS
No. CR-14-1083
DANNY STALNAKER Opinion Delivered May 28, 2015
APPELLANT
PRO SE APPEAL FROM THE SALINE
V. COUNTY CIRCUIT COURT
[NO. 63CR-12-341]
STATE OF ARKANSAS HONORABLE BOBBY McCALLISTER,
APPELLEE JUDGE
AFFIRMED.
PER CURIAM
In 2013, Danny Stalnaker was found guilty by a jury of murder in the second degree and
being a felon in possession of a firearm. He was sentenced as a habitual offender to an aggregate
term of 540 months’ imprisonment and a fine of $20,000. The Arkansas Court of Appeals
affirmed. Stalnaker v. State, 2014 Ark. App. 412, 437 S.W.3d 700.
Subsequently, Stalnaker timely filed in the trial court a verified, pro se petition for
postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013), claiming that
he was denied effective assistance of counsel. The trial court denied the petition. Stalnaker
brings this appeal.1
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In his brief on appeal, Stalnaker has restated some of the issues raised in the petition
filed below and in some instances added arguments. On appeal, an appellant is limited to the
scope and nature of the arguments he made below and that were considered by the circuit court
in rendering its ruling. For that reason, we will consider only those argument in the brief which
were raised below and the support for those claims that appeared in the petition. Feuget v. State,
2015 Ark. 43, 8, 454 S.W.3d 734, 740 (2015). Any allegation raised below which is not argued
in this appeal is considered abandoned. See Beverage v. State, 2015 Ark. 112, ___ S.W.3d ___.
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We do not reverse the grant or denial of postconviction relief unless the trial court’s
findings are clearly erroneous. Lemaster v. State, 2015 Ark. 167, ___ S.W.3d ___. 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. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883.
We assess the effectiveness of counsel under the two-prong standard set forth by the
Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984). Sartin v.
State, 2012 Ark. 155, 400 S.W.3d 694. Under this standard, the petitioner must first show that
counsel’s performance was deficient. Id. This requires a showing that counsel made errors so
serious that counsel deprived the petitioner of the counsel guaranteed to the petitioner by the
Sixth Amendment. Id. Second, the deficient performance must have resulted in prejudice so
pronounced as to have deprived the petitioner of a fair trial whose outcome cannot be relied on
as just. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). Both showings are necessary
before it can be said that the conviction resulted from a breakdown in the adversarial process
that renders the result unreliable. Lemaster, 2015 Ark. 167.
Stalnaker was originally charged with first-degree murder in the death of Chris Patterson.
Evidence adduced at trial reflected that Stalnaker and Patterson were at a camping area and that
Patterson, who was heavily intoxicated, had been annoying other persons throughout the day
with verbal abuse and threats of physical harm. In the evening, Stalnaker retrieved a shotgun,
exchanged some words with Patterson, who was seated at a picnic table, and then struck
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Patterson on the side of the head with the stock of the shotgun. Stalnaker said that he acted out
of fear of Patterson, he did not intend to kill him, and he did not realize that Patterson would
die from the blow. The medical examiner described the injury as significant and life threatening.
At trial, Stalnaker’s counsel requested that the jury be instructed on the justifiable use of
“physical force” because Stalnaker believed that he was defending himself from Patterson’s
threat of physical force, as found in Arkansas Model Jury Instruction–Criminal 704. The trial
court denied the request and offered to give the “deadly physical force” instruction found in
Arkansas Model Jury Instruction–705. Counsel declined 705, arguing that the facts would not
support that instruction. Counsel ultimately withdrew the request that the jury be instructed on
a justification defense at all and proffered 704. Counsel also proffered jury instructions on the
lesser included offenses of negligent homicide and manslaughter after the trial court declined to
instruct the jury on those offenses.
On direct appeal, Stalnaker raised the issue of whether the trial court abused its discretion
in declining the proffered justification-defense instruction in 704. The court of appeals held that
there was no abuse of discretion in declining 704 because the facts supported the “deadly
physical force” instruction in 705, if any justification defense.
In his Rule 37.1 petition, Stalnaker alleged that counsel was ineffective because counsel
abandoned the strategy of “self-defense, negligent homicide and/or manslaughter” without his
permission. As his first issue in this appeal, he argues that counsel was remiss in not objecting
when the trial court declined to instruct the jury on negligent homicide and manslaughter as
lesser included offenses and that counsel was ineffective by not raising the issue on direct appeal.
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He further argues that counsel should not have withdrawn his request for an instruction on
justification.
With respect to the issue concerning the jury instructions for negligent homicide and
manslaughter, as stated, the record reflects that counsel specifically sought instructions on
negligent homicide and manslaughter and proffered instructions on those offenses when the
court denied the request for the instructions. Therefore, counsel did raise the issue at trial and
obtained a ruling on it. As to whether counsel was ineffective for not raising the issue on direct
appeal, a petitioner contending that his appellate attorney was ineffective for failing to raise an
issue must demonstrate that he was prejudiced by counsel’s decision. To establish prejudice, the
petitioner bears the burden of demonstrating that there was an issue that would have been
meritorious on direct appeal and would have resulted in relief from the judgment. State v. Rainer,
2014 Ark. 306, 440 S.W.3d 315. Appellant did not make that showing.
To establish that there would have been merit to the issue of whether the trial court erred
in declining to give the instructions, Stalnaker appears to rely primarily on his belief that the trial
court in its order misstated or misunderstood the facts of the case or failed to come to the
correct conclusion, i.e. that Stalnaker acted in self-defense. He essentially argues that the facts,
if accepted from his perspective, were not sufficient to sustain the judgment of conviction.
Stalnaker’s interpretation of the facts itself, however, is not a showing that the court of appeals
would have reversed the judgment if counsel had raised on appeal the issue of the trial court’s
refusal to give instructions on negligent homicide and manslaughter.
The sufficiency of the evidence, including the credibility of witnesses, was a matter to be
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decided at trial. Stalnaker’s stringent disagreement with the trial court’s statements concerning
the facts of the case is not a ground to reverse the order denying postconviction relief.
Moreover, to the extent that Stalnaker was asking the trial court in his Rule 37.1 petition to
reassess the question of whether the facts supported the judgment, Rule 37.1 does not provide
a means to attack the weight of the evidence to support the conviction. Anderson v. State, 2015
Ark. 18, 454 S.W.3d 212 (per curiam). The claim amounts to a direct attack on the judgment.
Id. As such, a challenge to whether the evidence was sufficient to sustain the judgment is a
matter to be raised at trial and on the record on appeal. Leach v. State, 2015 Ark. 163 (2015). It
is well settled that Rule 37.1 does not afford an opportunity to a convicted defendant to
challenge the sufficiency of the evidence merely because the petitioner has raised the challenge
as an allegation of ineffective assistance of counsel. Nickelson v. State, 2013 Ark. 252 (per
curiam).
Therefore, the sole question cognizable under the Rule is whether counsel erred by not
raising on direct appeal the issue of the trial court’s declining to give the proffered instructions
on the two lesser included offenses. Stalnaker did not meet his burden of demonstrating that
counsel was ineffective because he failed to show that the issue would have been meritorious.
In assessing prejudice, courts “must consider the totality of the evidence before the judge or
jury.” Strickland, 446 U.S. at 695. Here, there was evidence that Patterson, who had a blood
alcohol content four times the legal limit for intoxication, was seated with his legs under a picnic
table. Stalnaker went to retrieve a shotgun and, after briefly exchanging words with Patterson,
swung the gun with great force “like a baseball swing” and struck Patterson in the head.
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Stalnaker testified that he struck Patterson because Patterson stood up and threatened him, but
no other witness testified to Patterson’s having threatened Stalnaker. There was testimony only
that Patterson was verbally belligerent, obnoxious, and had made general threats to “kick” or
“whoop” people. Considering the totality of the evidence adduced at trial and the court of
appeals’ decision that the facts supported a verdict of second-degree murder, Stalnaker did not
establish that he was entitled to an instruction on negligent homicide or manslaughter. Stalnaker
has not shown that there is a reasonable probability that the outcome of the trial would have
been different had an instruction on the lesser included offenses been given to the jury. See Rasul
v. State, 2015 Ark. 118, at 6.
Turning to the issue of whether counsel was ineffective in not asking for a jury
instruction on justification as a defense, counsel proffered jury instruction 704, which required
a showing that the perpetrator was justified in using “physical force” to defend himself. Counsel
argued that 704 was the only jury instruction appropriate to the facts of the case. Counsel
declined the court’s offer to instruct the jury in accordance with jury instruction 705, which
required a showing that “deadly physical force” was justified because counsel did not consider
that the facts would support a showing that Stalnaker was justified in using deadly physical force.
Rather than accept 705, counsel proffered 704 and argued on appeal that the trial court erred
in not giving that instruction. The court of appeals found that it was not error for the trial court
to reject the instruction and noted that counsel’s decision not to accept 705 was a matter of trial
strategy.
We find that both counsel’s decision not to ask that the jury be instructed on negligent
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homicide and manslaughter and also counsel’s decision not pursue a jury instruction on
justification as a defense were tactical decisions about which seasoned advocates could disagree.
Matters of trial tactics and strategy are not grounds for postconviction relief on grounds of
ineffective assistance of counsel. Rankin v. State, 365 Ark. 255, 227 S.W.3d 924 (2006). This
court has held that competent counsel may elect not to request a particular jury instruction as
a matter of strategy. See Feuget v. State, 2015 Ark. 43, 454 S.W.3d 734 (2015).
Counsel here was free to weigh whether the jury might be more likely to enter a verdict
favorable to the defense if it were required to decide between first-degree and second-degree
murder. See Henderson v. State, 281 Ark. 406, 664 S.W.2d 451 (1984) (per curiam). Likewise,
counsel was not wrong to decide not to have the jury instructed on the only justification defense
that the court was willing to give when the facts of the case were considered.
At the close of his discussion of his first argument for reversal in his brief, Stalnaker
states that counsel made a mistake when he did not challenge the mention in the pretrial
omnibus hearing that Stalnaker had been found guilty of five prior felonies. He contends that
there should have been an objection so that he could have appealed the issue. He does not
contend that the jury was present when the prior felonies were mentioned.
The record on direct appeal reflects that there was a discussion outside the presence of
the jury in which Stalnaker advised the court that it was his intention to testify. During that
discussion, counsel expressed his understanding that there were two prior felony convictions
that were the basis of the habitual-offender claim. The State agreed that there were two prior
felonies and that those convictions would be made known to the jury at the beginning of the
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State’s case. The jury in the sentencing portion of the trial was duly advised that Stalnaker had
two prior felony convictions. Accordingly, even if there were some mention in a pretrial hearing
at which the jury was not present that Stalnaker had more than two prior felonies, that
information was not before the jury. As a result, Stalnaker made no showing of prejudice to the
defense. Without a showing of prejudice, there is no ground for granting postconviction relief.
Carter v. State, 2015 Ark. 166.
As his next ground for reversal of the trial court’s order, Stalnaker contends that the trial
court erred in holding that his attorney was not ineffective in three areas. Stalnaker faults
counsel for not asking for a change of venue, not requesting a mental evaluation, and for
spending too much time focusing on plea negotiations instead of preparing for trial. We find
no error because Stalnaker did not provide factual substantiation to show that he was prejudiced
by counsel’s conduct in any of the three areas.
Stalnaker did not state what circumstances would have formed a basis on which the court
would have granted a motion for change of venue such as affidavits, newspaper reports, or
statements by residents, to support the assertion that he could not have received a fair trial
without a change of venue. A bare allegation that a change of venue should have been sought
does not show that a meritorious motion could have been made or that an impartial jury was not
empaneled. Thomas v. State, 2015 Ark. 112, ___ S.W.3d ___. Moreover, we have held that the
decision whether to seek a change of venue is largely a matter of trial strategy and therefore not
an issue for debate under our postconviction rule. Id. (citing Neff v. State, 287 Ark. 88, 696
S.W.2d 736 (1985) (per curiam)).
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As to the failure of counsel to secure a mental evaluation for Stalnaker before trial, a
petitioner who asserts that counsel was ineffective for failing to obtain a mental evaluation
before trial must demonstrate with facts that he or she was not competent at the time of trial.
Robertson v. State, 2010 Ark. 300, 367 S.W.3d 538 (per curiam). Stalnaker offered no facts to
substantiate his allegation.
Likewise, Stalnaker offered no facts to show that counsel should have spent more time
preparing for trial and less time on plea negotiations. An assertion of ineffective assistance of
counsel based on failure to investigate must be supported by facts describing how a more
searching pretrial investigation would have changed the results of the trial. Wertz v. State, 2014
Ark. 240, 434 S.W.3d 895. General assertions that counsel did not aggressively prepare for trial
are not sufficient to establish an ineffective-assistance-of-counsel claim. Id.
In his next point for reversal of the trial court’s order, Stalnaker contends that it was error
under Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013) for the
trial court not to permit him the time necessary for him to retain counsel for the Rule 37.1
proceeding. Stalnaker’s reliance on Martinez and Trevino is misplaced. The Martinez Court held
that, when state law requires a prisoner to use a collateral attack rather than a direct appeal to
raise a claim that his trial attorney was not effective under the Sixth Amendment, the prisoner’s
failure to comply with state rules in bringing his collateral attack on the judgment will no longer
bar a federal judge from granting habeas relief on that claim, if the prisoner had no attorney to
represent him in the collateral proceeding or that attorney was ineffective and if the petition filed
in the state court had a meritorious claim. In Trevino, the Court extended its holding in Martinez
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to cases in which a state’s procedural framework make it unlikely in a typical case that a
defendant would have a meaningful opportunity to raise a claim of ineffective assistance of trial
counsel on direct appeal. Trevino clarified aspects of Martinez but it did not require states to make
provision for every petitioner in a collateral attack on a judgment to have counsel. See Chunestudy
v. State, 2014 Ark. 345, 438 S.W.3d 923 (per curiam). Postconviction matters are considered civil
in nature, and there is no absolute right to counsel. Newton v. State, 2014 Ark. 538, 453 S.W.3d
125 (per curiam).
As his final issue on appeal, Stalnaker asserts that he is a “victim of trial penalty” because
he is serving a longer sentence than he would be had his attorney been effective in plea
negotiations. In short, he contends that he is being penalized by the fact that he went to trial
rather than accepting a negotiated plea.
Outside the presence of the jury, counsel informed the court that Stalnaker had been
offered a negotiated plea whereby he would plead guilty to murder in the second-degree and be
sentenced to thirty-one years’ imprisonment.2 Stalnaker informed the court that he could not
accept the plea offer because he did not feel himself guilty of a crime. When Stalnaker appeared
before the court and explained that he had refused the plea offer from the State, he was asked
by the court if his all his questions had been answered and again asked if he wished to decline
the plea offer. Stalnaker repeated that he did not wish to accept the plea. In response to the
court’s remarking that counsel was a competent attorney, Stalnaker said, “I feel like I’ve been
2
In his Rule 37.1 petition and brief, Stalnaker alleges that the plea offer was for a sentence
of twenty-one years, but the direct-appeal record establishes that the offer was for thirty-one
years.
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treated as fair as I can be treated.”
It is clear from the record that Stalnaker made the decision to be tried by jury. The mere
fact that Stalnaker was later dissatisfied with his decision or that he received a longer sentence
than he would have received had he accepted the plea bargain is not a basis for a collateral attack
on a judgment under Rule 37.1.
Because Stalnaker failed to meet his burden of establishing that he was denied effective
assistance of counsel under the Strickland standard, the trial court did not err in declining to grant
his Rule 37.1 petition. Accordingly, we affirm the order.
Affirmed.
Danny Stalnaker, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., for appellee.
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