FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. 66CR-09-676] HONORABLE J. MICHAEL FITZHUGH, JUDGE
E. Walden, pro se appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee
2011, appellant Larry Eugene Walden was found guilty by a
jury of aggravated robbery and sentenced as a habitual
offender to 720 months' imprisonment. The Arkansas Court
of Appeals affirmed. Walden v. State, 2012 Ark.App.
307, 419 S.W.3d 739.
subsequently filed in the trial court a timely, verified
petition for postconviction relief pursuant to Arkansas Rule
of Criminal Procedure 37.1 (2011). The petition was denied,
and Walden appealed to this court. We reversed the order and
remanded the matter to the trial court for entry of an order
that complied with Rule 37.3(a). Walden v. State,
2014 Ark. 10 (per curiam).
remand, the trial court held a hearing on the petition and
again denied postconviction relief. Walden brings this
appeal. Any issues that were argued below, but not raised in
this appeal, are considered abandoned. Williams v.
State, 2011 Ark. 489, 385 S.W.3d 228.
Rule 37.1 petition was based on numerous claims that his
trial attorney, Timothy Sharum, was ineffective, all of which
the trial court rejected. We find no error and affirm the
court will not reverse the trial court's decision
granting or denying postconviction relief unless it is
clearly erroneous. Kemp v. State, 347 Ark. 52, 55,
60 S.W.3d 404, 406 (2001). 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. Id. 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 the totality of the evidence
under the standard set forth by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668, 104
(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. Under the two-prong
standard outlined in Strickland, 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.
Adkins v. State, 2015 Ark. 336, 469 S.W.3d 790. The
reviewing court must indulge in a strong presumption that
trial counsel's conduct falls within the wide range of
reasonable professional assistance. Id. The
petitioner claiming ineffective assistance of counsel 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.
Id. The second prong requires a petitioner to show
that counsel's deficient performance so prejudiced his
defense that he was deprived of a fair trial. Holloway v.
State, 2013 Ark. 140, 426 S.W.3d 462. Consequently, the
petitioner must show 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 been different absent the errors.
Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006).
A reasonable probability is a probability sufficient to
undermine confidence in the outcome of the trial.
Id. Unless a petitioner makes both showings, it
cannot be said that the conviction resulted from a breakdown
in the adversarial process that renders the result
unreliable. Houghton v. State, 2015 Ark. 252, 464
S.W.3d 922. Finally, conclusory statements that counsel was
ineffective cannot be the basis for postconviction relief.
Id.; Anderson v. State, 2011 Ark. 488, 385
charge of aggravated robbery against Walden arose from an
incident at a bank in Fort Smith in 2009 in which Walden
handed a teller a bag with a note that said, "This is a
robbery. I have a gun. Give me all your money, no red dye
pack." The teller testified that she took money from her
till and placed it in the bag because of Walden's
"menacing scowl" and the implied threat to her
life. Prior to instruction of the jury by the trial court,
Walden requested an instruction on the lesser-included
offense of robbery. The trial court declined to give the
instruction on robbery. On direct appeal, the court of
appeals did not reach the trial court's decision to deny
the instruction on the lesser-included offense of robbery
because Walden did not proffer the instruction.
Walden, 2012 Ark.App. 307, 419 S.W.3d 739.
alleged in his Rule 37.1 petition that the failure of his
counsel, Sharum, to proffer the instruction amounted to
ineffective assistance of counsel because the instruction was
warranted and because the court of appeals would have
reversed the judgment had the proffer been given. The trial
court held in its order that counsel was not ineffective
because Walden was not entitled to the instruction on the
ground that the evidence that Walden had committed aggravated
robbery was conclusive; therefore, there was no requirement
that the jury be instructed on mere robbery.
agree. We need not reiterate the discussion by the court of
appeals in its decision finding that Walden's conduct
satisfied the elements of aggravated robbery as defined by
Arkansas Code Annotated section 5-12-103 (Repl. 2006).
Walden, 2012 Ark.App. 307, at 6-7, 419 S.W.3d at
743. As there was substantial evidence that Walden committed
aggravated robbery, he did not establish that there is a
reasonable probability that the outcome of his trial would
have been different had the lesser-included-offense
instruction been given or that the court of appeals would
have reversed the judgment had there been a proffer of the
instruction. See Sweet v. State, 2011 Ark. 20, 370
S.W.3d 510 (holding that when the evidence adduced at trial
was conclusive to show that aggravated robbery was committed,
the trial court was not required to administer a jury
instruction on the lesser-included offense of ordinary
next point for reversal of the trial court's order
pertains to his having been convicted as a habitual offender
at the Arkansas trial based on his prior convictions in
federal court in Oklahoma of three counts of robbery. Walden
contended in his Rule 37.1 petition, as he does in this
appeal, that Sharum was ineffective on the ground that
Sharum, before Walden was tried for aggravated robbery in
Arkansas, erred in advising him to plead guilty to the three
robbery counts in federal court in Oklahoma and thus caused
him to be sentenced as a habitual offender in Arkansas.
trial court noted in its order that Sharum had no authority
to advise Walden on his pending federal charges,
that Sharum testified at the hearing that he had told Walden
to listen to his attorney in the federal court proceedings,
and that Walden admitted at the Rule 37.1 hearing that Sharum
had not expressly advised him to plead guilty in federal
court. Rather, Walden contended at the hearing that Sharum
was remiss by not communicating with him about the
federal court pleas and that he should have "stepped in
and done something about it, " and faulted Sharum for
not advising him "in any way, shape, or form." It
appears that Walden's allegations concerning Sharum's
conduct with respect to the federal court pleas were founded
on the erroneous assumption that Sharum had an obligation to
advise him about the federal court pleas because those pleas
might affect his status as a habitual offender in his
Arkansas trial. If so, he did not demonstrate that Sharum had
such a duty or that he was remiss within the bounds of
Strickland in the Arkansas proceedings by not
advising him on the federal charges.
Walden argues that Sharum erred by resting the defense case
without permitting him to testify on his own behalf. The
Supreme Court of the United States has held that a criminal
defendant has a right to testify on his own behalf if he
chooses to do so. Rock v. Arkansas, 483 U.S. 44
(1987). Counsel may only advise the accused in making the
decision. Sartin v. State, 2012 Ark. 155, at 7-8,
400 S.W.3d 694, 699-700; Chenowith v. State, 341
Ark. 722, 19 S.W.3d 612 (2000) (per curiam). This court has
consistently held, however, that the mere fact that a
defendant did not testify is not, in and of itself, a basis
for postconviction relief. See, e.g., Dansby v.
State, 347 Ark. 674, 66 S.W.3d 585 (2002). Ordinarily,
counsel's advice to the defendant not to testify is
simply a matter of trial strategy. Williams v.
State, 2011 Ark. 489, at 12, 385 S.W.3d 228, 237;
Chenowith, 341 Ark. at 734, 19 S.W.3d at 618. The