JAMES E. McNICHOLS, APPELLANT
STATE OF ARKANSAS, APPELLEE
APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT. NO. 43CR-07-238. HONORABLE BARBARA ELMORE, JUDGE.
James E. McNichols, Pro se, appellant.
Dustin McDaniel, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.
In 2007, appellant James E. McNichols was found guilty by a jury of two counts of raping his seven-year-old step daughter. He was sentenced to serve an aggregate sentence of 240 months' imprisonment. The Arkansas Court of Appeals affirmed. McNichols v. State, CR-07-1285, (Ark.App. Jun. 18, 2008) (unpublished) (original docket no. CACR 07-1285).
After the mandate in the case issued on November 13, 2008, appellant timely filed in the trial court a verified pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2007). Appellant retained an attorney to represent him in the Rule 37.1 proceeding, and a hearing was held on the petition in 2013. On September 11, 2013, the trial court entered an order dismissing the petition. Counsel for appellant perfected the appeal to this court, and appellant subsequently filed pro se motions seeking to have counsel relieved and for an extension of time to file a pro se brief. The motion to relieve counsel was granted and
a new briefing schedule was set. The appeal is now before us.
Appellant initially argues that the trial court erred in denying relief on two allegations of ineffective assistance of counsel. This court has held that it will reverse the trial court's decision granting or denying postconviction relief only when that decision is clearly erroneous. Conley v. State, 2014 Ark. 172, 433 S.W.3d 234. 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. Caery v. State, 2014 Ark. 247 (per curiam); Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694.
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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel's 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. Caery, 2014 Ark. 247; 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 ...