FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04-CR-761]
HONORABLE ROBIN F. GREEN, JUDGE
Rosenzweig, for appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee
W. BRILL, Chief Justice
Mark Aaron Luper appeals the order denying his petition for
postconviction relief. Luper was convicted by a Benton County
jury of the rape of his former stepdaughter, S.H., and
sentenced to twenty-three years' imprisonment in the
Arkansas Department of Correction. Luper appealed, and the
court of appeals affirmed. See Luper v. State, 2015
Ark.App. 440, 468 S.W.3d 289. Thereafter, Luper filed a
petition for postconviction relief pursuant to Arkansas Rule
of Civil Procedure 37.1, in which he asserted eleven claims
of ineffective assistance of trial counsel. The circuit court
denied the petition without a hearing. For reversal, Luper
contends that he was entitled to an evidentiary hearing on
five of the claims in his petition. Luper asserts that trial
counsel was ineffective (1) for failing to call a witness to
corroborate his defense that the "false" allegation
of rape was a means for Robin Luper,  the victim's mother, to
obtain leverage in her divorce action against him, (2) for
not adequately exploring Robin's "financial demands
and obligations, " (3) for failing to show the jury
videos depicting S.H. and him at Walmart the day after the
rape, (4) for failing to obtain S.H.'s phone records, and
(5) for failing to dispute S.H.'s claim that her sister,
H.H., had never attended car shows with him. We affirm the
circuit court's order.
court does not reverse a denial of postconviction relief
unless the circuit court's findings are clearly
erroneous. E.g., Turner v. State, 2016 Ark.
96, 486 S.W.3d 757. A finding is clearly erroneous when,
although there is evidence to support it, after reviewing the
entire evidence, we are left with the definite and firm
conviction that a mistake has been committed. Id.,
486 S.W.3d 757. In making a determination on a claim of
ineffective assistance of counsel, this court considers the
totality of the evidence. E.g., State v.
Harrison, 2012 Ark. 198, 404 S.W.3d 830.
review of claims of ineffective assistance of counsel, this
court follows the standard set forth by the Supreme Court of
the United States in Strickland v. Washington, 466
U.S. 668 (1984). 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. E.g., Doty
v. State, 2016 Ark. 341.
the performance prong of the Strickland test, the
petitioner must show that counsel's performance was
deficient. E.g., Decay v. State, 2014 Ark.
387, 441 S.W.3d 899. This factor requires a showing that
trial 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. Id., 441 S.W.3d 899. The courts
acknowledge a strong presumption that counsel's conduct
fell within the wide range of reasonable professional
assistance. See, e.g., Henington v. State,
2012 Ark. 181, 403 S.W.3d 55. Accordingly, the petitioner has
the burden of overcoming this presumption by identifying
specific acts or omissions of counsel, which, when viewed
from counsel's perspective at the time of trial, could
not have been the result of reasonable professional judgment.
Id., 403 S.W.3d 55.
the prejudice prong of Strickland, even if
counsel's conduct is shown to be professionally
unreasonable, the judgment will stand unless the petitioner
can demonstrate that the error had an actual prejudicial
effect on the outcome of the proceeding. E.g.,
Lee v. State, 2009 Ark. 255, 308 S.W.3d 596. In
short, the petitioner must show "a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." See id., 308 S.W.3d 596 (quoting
Strickland, 466 U.S. at 694). A reasonable
probability is a probability sufficient to undermine
confidence in the outcome of the trial. E.g.,
Doty, 2016 Ark. 341.
to make the required showing of either deficient performance
or sufficient prejudice defeats the ineffectiveness
claim." Strickland, 466 U.S. at 700.
Accordingly, we need not address the Strickland
components in a particular order or even address both
components of the inquiry if the petitioner makes an
insufficient showing on one. See Strickland, 466
U.S. at 697. The Court has stated that "[i]f it is
easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, which we expect will often
be so, that course should be followed." Id.
first contends that counsel was ineffective for failing to
call Charles Mayhew to testify during the guilt phase of the
trial. According to Luper, Mayhew would have
testified that Robin "had made a statement concerning
the sale of Luper's 1967 Camaro to the effect that when
it sold, she would 'have everything I need.'"
Luper contends that this testimony would have bolstered his
assertion that the "false" allegation of rape was a
means for Robin to "obtain leverage" in her divorce
action against him.
testified that, since 2005, she and Luper had lived together
with her three children, Luper's youngest son from a
previous marriage, and a child that she and Luper had
together. She stated that she and Luper divorced in 2013 and
that she was not better off financially after the divorce
than she was when she and Luper were married. She testified
that their furniture, ...