Horton v. State

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SUPREME COURT OF ARKANSAS.
No. CR-16-203
Opinion Delivered December 1, 2016
CURTIS LAMONT HORTON
APPELLANT PRO SE APPEAL FROM THE SALINE
COUNTY CIRCUIT COURT AND
V. PRO SE MOTION TO SUPPLEMENT
APPELLANT’S BRIEF
STATE OF ARKANSAS [NO. 63CR-11-344]
APPELLEE
HONORABLE GARY ARNOLD,
JUDGE
AFFIRMED; MOTION DENIED.
PER CURIAM
In 2013, appellant Curtis Lamont Horton was found guilty by a jury of aggravated
residential burglary, theft of property, and failure to appear. He was sentenced as a habitual
offender to an aggregate sentence of 708 months’ imprisonment. The Arkansas Court of
Appeals affirmed. Horton v. State, 2014 Ark. App. 250. Horton subsequently filed in the
trial court a timely, verified petition for postconviction relief pursuant to Arkansas Rule of
Criminal Procedure 37.1 (2013). The trial court denied the petition, and this court granted
Horton’s motion to proceed with a belated appeal of the order. Horton v. State, 2016 Ark.
193, at 1 (per curiam). Both Horton and the State have filed briefs, and the appeal is now
before us.
The trial court order denying postconviction relief is affirmed. A motion that
Horton filed to supplement his brief is denied as it is clear from the record that Horton
could not prevail in his appeal. This court has held that it will reverse the trial court’s
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decision granting or denying postconviction relief only when that decision is clearly
erroneous. Carter v. State, 2015 Ark. 166, at 3, 460 S.W.3d 781, 786. 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. Applying this standard of
review, we hold that the trial court’s decision was not clearly erroneous in denying Horton’s
petition for postconviction relief.
Horton contended in his petition that he was not afforded effective assistance of
counsel at trial or on direct appeal. His allegations were stated as conclusions; that is, there
was no factual support offered for any of the claims. For that reason, he did not state a
ground for relief under Rule 37.1, and trial court did not err in denying the relief sought.
Conclusory allegations that are unsupported by facts do not provide a basis for granting
postconviction relief under the Rule or provide a basis for holding an evidentiary hearing
on the allegations contained in a petition. Sandrelli v. State, 2016 Ark. 103, at 3, 485 S.W.3d
692, 694.
Assertions of ineffective assistance of counsel are assessed under the standard set by
the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Under
the two-prong standard in Strickland, a petitioner seeking postconviction relief must show
that his counsel’s performance was deficient and that the deficient performance resulted in
prejudice. Fukunaga v. State, 2016 Ark. 164, at 3, 489 S.W.3d 644, 646. There is a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance, and the petitioner has the burden of overcoming that presumption by identifying
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the acts and 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. Feuget v.
State, 2015 Ark. 43, at 4, 454 S.W.3d 734, 738. Matters of trial strategy and tactics, even if
arguably improvident, fall within the realm of counsel’s professional judgment and are not
grounds for a finding of ineffective assistance of counsel. Noel v. State, 342 Ark. 35, 26
S.W.3d 123 (2000). From a review of Horton’s petition, the trial court’s order, and the
briefs in this appeal, it cannot be said that any allegation raised by Horton met the Strickland
standard and overcame the presumption that he was afforded effective assistance of counsel
at trial.
With respect to Horton’s claims of ineffective assistance of counsel on direct appeal,
the petitioner has the burden of making a clear showing that counsel failed to raise some
meritorious issue on appeal. Moore v. State, 2011 Ark. 269 (per curiam). Counsel’s failure
to raise a specific issue must have amounted to error of such magnitude that it rendered
appellate counsel’s performance constitutionally deficient under the Strickland criteria. The
petitioner must show that there could have been a specific issue raised on appeal that would
have resulted in the appellate court’s declaring reversible error. State v. Rainer, 2014 Ark.
306, 440 S.W.3d 323, reh’g denied, 2014 Ark. 373, 440 S.W.3d 328. It is the petitioner’s
responsibility to establish that the issue was raised at trial, that the trial court erred in its
ruling on the issue, and that an argument concerning the issue could have been raised on
appeal to merit appellate relief. Id. Conclusory claims of ineffective assistance of appellate
counsel are insufficient to warrant a finding that appellate counsel did not render competent
representation on direct appeal under the Strickland standard. See Magness v. State, 2015 Ark.
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185, 461 S.W.3d 345 (per curiam). Horton has fallen far short of establishing that there was
a particular meritorious issue that appellate counsel could have raised on direct appeal but
did not. Therefore, he has not shown that he was denied effective assistance of counsel on
appeal. See Frazier v. State, 2016 Ark. 55, 482 S.W.3d 305 (per curiam).
In addition to numerous allegations of ineffective assistance of counsel, Horton also
made a series of statements in his petition that may have been intended as claims of trial
error, such as “impartial jury was not impaneled,” “prosecutorial misconduct during
sentencing phase,” and the statement that his sentence was illegal because he was denied
due process of law. If the allegations were indeed intended as claims of trial error, issues
that could have been addressed at trial and on the record on direct appeal are not grounds
for relief under Rule 37.1. Chatmon v. State, 2016 Ark. 126, at 3, 488 S.W.3d 501, 504
(per curiam), reh’g denied (Apr. 21, 2016). Furthermore, as to Horton’s allegations of
prosecutorial misconduct, we have held that such claims are a direct challenge to the
judgment and not a collateral attack, and thus those claims are outside the purview of a Rule
37.1 proceeding. See Wood v. State, 2015 Ark. 477, 478 S.W.3d 194, reh’g denied (Feb. 11,
2016).
To the extent that it could be said that Horton raised the legality of the sentence
imposed on him in the judgment, he did not demonstrate that the sentence was illegal. His
conclusory statements that his trial attorney was ineffective and that he did not receive a fair
trial did not constitute a showing that the judgment on conviction and the resulting
sentences in the three cases were illegal. Horton made the statement in his petition that his
sentence was “illegal (due process),” but he did not explain what due-process violation
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rendered the sentence illegal. A sentence is illegal on its face when it exceeds the statutory
maximum for the offense for which the defendant was convicted. Bell v. State, 2015 Ark.
370 (per curiam), cert. denied, 136 S. Ct. 2485 (2016); see also Renshaw v. Norris, 337 Ark.
494, 989 S.W.2d 515 (1999). Horton’s unexplained claim of a due-process violation did
not constitute a showing that the sentences were illegal. While a judgment is void where
there is an absence of due process, Neal v. State, 2016 Ark. 287, at 7, ___ S.W.3d ___, ___,
the petitioner must offer facts to support the claim that his or her judgment is void. See
Davis v. State, 2013 Ark. 189 (per curiam). Horton also did not demonstrate any other basis
for concluding that any of the three sentences imposed on him was illegal because he did
not demonstrate, or even contend, that the sentences imposed on him exceeded the
statutory maximum or that the trial court was without the authority to impose those
sentences. See Glaze v. State, 2011 Ark. 464, 385 S.W.3d 203.
Pursuant to Arkansas Code Annotated section 5-39-204(b) (Repl. 2013), aggravated
residential burglary is a Class Y felony. As a habitual offender, Horton was subject to a
sentence of not less than ten years to forty years, or life. See Ark. Code Ann. §§ 5-4-
401(a)(1) and 5-4-501(b). Horton’s sentence of 420 months’ (thirty-five years’)
imprisonment, which was imposed for aggravated residential burglary, was within statutory
limits for the offense.
Theft of property under Arkansas Code Annotated section 5-36-103(a)(2) and failure
to appear under Arkansas Code Annotated section 5-54-120(c)(1) (Supp. 2013) are each
Class C felonies. As a habitual offender, Horton was subject to a sentence for each offense
of not less than three years’ imprisonment and not more than thirty years’ imprisonment.
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See Ark. Code Ann. 5-4-401 and 5-4-501(a)(2)(C). Horton’s sentences of 144 months’
(twelve years’) imprisonment for each offense were not outside the statutory range for the
offenses.
Horton also made the allegation that the State failed to “charge and prove each
element of crime,” which was a violation of due process of law. Again, Horton provided
no factual substantiation for the claim that there was a due-process violation. If he was
questioning the sufficiency of the evidence to sustain the jury’s finding of guilt, we need
not reiterate the holding of the court of appeals that Horton’s conduct satisfied the elements
of aggravated residential burglary as set out in Arkansas Code Annotated section 5-39-
204(a), or review the record to reach a determination of whether Horton was properly
found guilty of theft of property or failure to appear, because Rule 37.1 does not afford a
convicted defendant a means to challenge the sufficiency of the evidence to sustain a
conviction. Chatmon, 2016 Ark. 126, 488 S.W.3d 501.
Next, Horton contended in his petition that the trial court should have considered
his claims “individually and collectively.” Even if he had not stated the allegations in entirely
conclusory terms, it is well settled that a court is not required to recognize cumulative error
in assessing allegations of ineffective assistance of counsel. See Noel, 342 Ark. 35, 26 S.W.3d
123; see also Pedraza v. State, 2016 Ark. 85, 485 S.W.3d 686 (per curiam); State v. Hardin,
347 Ark. 62, 60 S.W.3d 397 (2001) (holding that it was reversible error for the trial court
to consider cumulative error in assessing claims of ineffective assistance of counsel).
Finally, Horton argues in his brief that the trial court should have held a hearing on
his petition, that the court’s order did not satisfy the requirements of Rule 37.3(a), and that
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a deputy prosecuting attorney should not have been allowed by the court to draft the order.
Under the precedent set by this court in considering appeals from postconviction orders,
the arguments fail.
Rule 37.3 requires an evidentiary hearing in a Rule 37.1 postconviction proceeding
unless the petition and the files and records of the case conclusively show that the petitioner
is entitled to no relief. Beverage v. State, 2015 Ark. 112, at 5, 458 S.W.3d 243, 247. If the
files and the record conclusively show that the petitioner is not entitled to relief, the trial
court may simply 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).
Furthermore, this court also may affirm the denial of a Rule 37.1 petition notwithstanding
the trial court’s failure to make sufficient findings under Rule 37.3(a) in two circumstances:
(1) when it can be determined from the record that the petition is wholly without merit, or
(2) when the allegations in the petition are such that it is conclusive on the face of the
petition that no relief is warranted. See Turner v. State, 2016 Ark. 96, at 8, 486 S.W.3d 757,
763. In the instant case, it is clear from the record that Horton could not prevail on appeal
because, as stated, his petition was essentially conclusory in nature. Neither this court nor
the trial court was required to search the trial record in an attempt to determine what
grounds Horton may have intended to raise by means of his bare conclusory statements or
what factual substantiation there may have been for an asserted ground. See Wilburn v. State,
292 Ark. 416, 730, 730 S.W.2d 491 (1987) (per curiam).
As to the notation on the Rule 37.1 order that a deputy prosecuting attorney drafted
it, we have rejected the argument that the circuit court judge must personally draft each
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order in a matter. We have held that when a court approves and signs the order, the trial
court has approved and adopted the order; accordingly, it makes no difference what person
drafted the order so long as the court approved it. Scott v. State, 267 Ark. 628, 631, 593
S.W.2d 27, 29 (1980) (holding that an order in a criminal matter drafted by the prosecutor
and signed by the circuit judge was in compliance with requirements of the law); see also
Maldonado v. State, 2011 Ark. 452, at 4 (per curiam) (it was not error for the trial court to
approve and adopt the order disposing of a Rule 37.1 petition that was drafted by the
prosecuting attorney, and the order contained the requisite findings of fact and conclusions
of law).
Affirmed; motion denied.
Curtis Lamont Horton, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Evelyn D. Gomez, Ass’t Att’y Gen., for appellee.
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