JOHN D. THOMPSON, APPELLANT
STATE OF ARKANSAS, APPELLEE
FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. 18CR-13-544]
HONORABLE JOHN N. FOGLEMAN, JUDGE
D. Thompson, pro se appellant.
Rutledge, Att'y Gen., by: Rebecca Bailey Kane, Ass't
Att'y Gen., for appellee.
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
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.
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.
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.
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.
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.
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.
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
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.
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 ...