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Thompson v. State

Supreme Court of Arkansas

October 6, 2016

JOHN D. THOMPSON, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

         APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. 18CR-13-544] HONORABLE JOHN N. FOGLEMAN, JUDGE

          John D. Thompson, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Rebecca Bailey Kane, Ass't Att'y Gen., for appellee.

          PER CURIAM

         In 2014, appellant John D. Thompson was found guilty by a jury of first-degree murder of his wife. He was sentenced to 480 months' imprisonment, and the Arkansas Court of Appeals affirmed. Thompson v. State, 2015 Ark.App. 486, 469 S.W.3d 814.

         In 2015, Thompson timely filed in the trial court a verified pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2014) seeking to vacate the judgment on the ground that he was denied effective assistance of counsel. The petition was denied, and Thompson brings this appeal.

         When considering an appeal from a trial court's denial of a Rule 37.1 petition, the sole question presented is whether, under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), the trial court clearly erred in holding that counsel's performance was not ineffective. Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783; Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). In making a determination of ineffective assistance of counsel, the totality of the evidence must be considered. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55.

         The benchmark for judging a claim of ineffective assistance of counsel is "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 analysis. First, a claimant must show that counsel's performance was deficient. Britt v. State, 2009 Ark. 569, 349 S.W.3d 290. Counsel is presumed effective, and allegations without factual substantiation are insufficient to overcome that presumption. Henington, 2012 Ark. 181, 403 S.W.3d 55. The petitioner has the burden of overcoming the presumption by identifying specific acts and omissions that, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Henington, 2012 Ark. 181, 403 S.W.3d 55.

         Second, a claimant must also show that this deficient performance prejudiced his defense so as to deprive him of a fair trial. Id. Even if counsel's conduct is shown to be professionally unreasonable, the judgment will stand unless the petitioner can demonstrate that counsel's error had an actual prejudicial effect on the outcome of the proceeding. Strickland, 466 U.S. at 691. A petitioner, in claiming deficiency, must show that "counsel's representation fell below an objective standard of reasonableness." Id. A petitioner must also demonstrate that there is a reasonable probability that, but for counsel's errors, the fact- finder would have had a reasonable doubt respecting guilt, or in other words, that the decision reached would have been different absent the errors. Henington, 2012 Ark. 181, 403 S.W.3d 55. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, "the outcome of the trial, " refers not only to the finding of guilt or innocence, but also to possible prejudice in sentencing. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). 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. Id. "[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697.

         This court will affirm the denial of postconviction relief unless the circuit court's findings are clearly erroneous. Beavers v. State, 2016 Ark. 277, _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. Id.

         Thompson first argues in this appeal that the trial court erred in its denial of his claim that he was prejudiced by counsel's failure to object when one of the prosecutors present at his trial committed "contempt of court" by using the word "rigor" in a statement made before the State's opening statement was given. In both his Rule 37.1 petition and in his brief, Thompson seems to indicate that the mention of "rigor" occurred during the opening statement. He notes that there was a pretrial agreement between the parties not to mention rigor when referring to the time of the victim's death, but the prosecutor did not abide by the agreement. He argues that his attorney should have made an immediate objection. However, he concedes in his brief that the remark was "unheard and unreported" and not recorded. He states merely that he was in the courtroom and heard the word, and it was damaging to the defense.

         We find no reversible error. As the trial court found in its order, Thompson offered no factual substantiation for the claim that the word "rigor" was actually used by the State. As stated, Thompson admits that the word was not heard, apparently by anyone but him, and was not reported or recorded. The burden is entirely on the claimant to provide facts that affirmatively support his claims of prejudice; neither conclusory statements nor allegations without factual substantiation are sufficient to overcome the presumption that counsel was effective, and such statements and allegations will not warrant granting postconviction relief. Carter v. State, 2015 Ark. 166, at 8-9, 460 S.W.3d 781, 789.

         As his second point on appeal, Thompson argues that the trial court lacked jurisdiction to try him because he was denied a speedy trial and that counsel was remiss in failing to object on the ground that he was not afforded a speedy trial. He notes that he was brought to trial 439 days after he had been arrested.

         Pursuant to Arkansas Rules of Criminal Procedure 28.1 and 28.2 (2015), a defendant must be brought to trial within twelve months of the date of his arrest unless there are periods of delay that are excluded under Rule 28.3. If the defendant is not brought to trial within the requisite time, the defendant is entitled to have the charges dismissed with an absolute bar to prosecution. Ark. R. Crim. P. 28.1(c) & 30.1. (2013); Turner v. State,2016 Ark. 96, at 7, 486 S.W.3d 757, 762. Thompson acknowledges that there were continuances granted that delayed the trial, but he argues ...


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