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FROM THE POLK COUNTY CIRCUIT COURT. NO. CR-2011-137.
HONORABLE JERRY RYAN, JUDGE.
Wesley Hall, Jr., Sarah M. Pourhosseini, and John R. Van
Winkle, for appellant.
Rutledge, Att'y Gen., by: David Raupp, Christian Harris,
and Vada Berger, Ass't Att'ys Gen., for appellee.
DANIELSON, Associate Justice. BAKER and HART, JJ., concur.
E. DANIELSON, Associate Justice
David Van Winkle was convicted in the Polk County Circuit
Court of kidnapping, aggravated residential burglary,
first-degree stalking, third-degree battery, first-degree
assault, and first-degree terroristic threatening. He was
sentenced to a total of fifty-two years' imprisonment,
which included a twelve-year firearm enhancement. The
Arkansas Court of Appeals affirmed. Van Winkle v.
State, 2014 Ark.App. 591, 445 S.W.3d 542. Van Winkle
subsequently filed a petition for postconviction relief
pursuant to Arkansas Rule of Criminal Procedure 37.1 (2015).
The circuit court denied the petition without a hearing. Van
Winkle now appeals, arguing four points in support of
reversal: (1) that his trial counsel was ineffective for
failing to present his only viable defense, which is that he
was actually innocent; (2) that his trial counsel was
ineffective for failing to move for a change of venue; (3)
that his sentence for employing a firearm in the commission
of an offense is void as both structural error and
ineffective assistance of trial counsel; and (4) that the
circuit court erred in denying his request for a hearing. We
affirm the denial of postconviction relief.
order to assess Van Winkle's ineffective-assistance
arguments, some discussion of the underlying facts is
necessary. Van Winkle was a dentist practicing in Mena; the
victim in this case, M.O., was one of his patients. According
to her testimony, Van Winkle extracted two of her teeth and
gave her a prescription for hydrocodone. She was concerned
about the prescription because she had a history of drug
addiction and was participating in drug court at the time.
M.O.'s use of the hydrocodone " start[ed] to get out
of hand" after the first extraction. She and Van Winkle
discussed hiding pills from her probation officer, and he
offered to give her refills as needed in order to ensure that
her " pill count" was acceptable. After the second
extraction, Van Winkle told M.O. that her probation officer
had come by his office to look at her file. The probation
officer had also asked to see Van Winkle's ledger, and
Van Winkle offered to meet with M.O. in person to discuss
that. They met once at M.O.'s home and three times at Van
Winkle's home in order to get their " stories
last occasion, Van Winkle asked M.O. how important it was
that her probation officer not see the real ledger. She
responded that it was " pretty damned important,"
and he wondered " what would [she] be willing to do in
order to keep that from happening." Van Winkle told M.O.
that he would make sure that she never saw her husband or her
child again and that she would go to prison for a really long
time if she did not give him a couple hours of her time. He
then forced her to perform oral sex on him.
later, M.O. called Van Winkle's office and obtained
another hydrocodone refill from his staff. Van Winkle sent
M.O. several text messages that night while she was at work,
inquiring about her pain and making arrangements for future
refills. M.O. testified that she left work at approximately
12:30 a.m., gave a coworker a ride home, and then drove to
in Hatfield. She walked in her front door and immediately
went to turn on a light that she usually left on while she
was at work. She then heard a bedroom door creak and turned
around to see Van Winkle standing there, pointing a pistol at
her. He tackled her to the ground, wrestled her arms behind
her, zip tied her wrists behind her back, and forced her
face-down over an ottoman. M.O. stated that she was able to
flip over on her back and break the zip ties. She started
" scratching and fighting" and begged him to wear a
condom. Van Winkle pulled a screwdriver out of his back
pocket and hit her over the eye with it. He told her to be
still if she ever wanted to see her little boy again. She
said that she would do whatever he wanted, and he replied,
" I know you will." He zip tied her wrists again
and placed a piece of duct tape over her mouth. He then
pulled her up by her shirt collar and told her that they were
" going to take a little walk." When he opened the
door, M.O. was able to break free and run to a neighbor's
neighbor called 911. M.O.'s husband also contacted law
enforcement. He had been in Lowell at the time and was on the
phone with M.O. as she drove home from work. He heard her
scream in fright shortly after she arrived home, and he then
heard what sounded like her phone hitting the floor before
the call ended. When law enforcement arrived on the scene,
they observed Van Winkle's truck parked off the road,
approximately 100 yards from M.O.'s home. They also saw
Van Winkle walking quickly toward his truck, coming from the
direction of M.O.'s home; he was carrying a gun in his
left hand. Van Winkle did not respond to initial commands to
drop his weapon and get on the ground, but he eventually
complied and was taken into custody. The gun was loaded.
conducted a search incident to arrest and found a screwdriver
in Van Winkle's right back pocket and two pieces of rope
in his left back pocket. Law enforcement also responded to
the neighbor's home, where they found M.O. She was
hysterical, her clothing was in disarray, and she had zip
ties on both wrists. There were signs of forced entry at
M.O.'s home, including removed window screens and pry
marks on the front and back doors. Inside her home, police
found her cell phone underneath the couch, one zip tie, a
roll of pennies wrapped in duct tape, and signs of a scuffle,
including overturned furniture. A piece of duct tape was
found in M.O.'s yard, between her home and her
neighbor's home, and a roll of duct tape was recovered
from Van Winkle's residence. In Van Winkle's truck,
police found a cell phone that had been taken apart and a
pair of zip ties.
Winkle was charged with kidnapping, aggravated residential
burglary, first-degree stalking, second-degree battery,
aggravated assault, and first-degree terroristic threatening.
The jury convicted him on all charges, reducing the
second-degree-battery charge to third degree and reducing the
aggravated-assault charge to first degree. The jury also
found that Van Winkle had used a firearm in the commission of
all offenses except for the battery; it imposed a twelve-year
sentence enhancement for his use of a firearm in the
commission of the kidnapping. The twelve-year firearm
enhancement and the forty-year sentence for aggravated
residential burglary were ordered to run consecutively, for a
total of fifty-two years' imprisonment. On appeal, Van
Winkle challenged the sufficiency of the evidence supporting
four of his six convictions: kidnapping, aggravated
residential burglary, first-degree stalking, and third-degree
battery. Van Winkle, 2014 Ark.App. 591, 445 S.W.3d
542. The court of appeals
concluded that each of the challenged convictions was
supported by ...