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Luper v. State

Supreme Court of Arkansas

November 3, 2016

MARK AARON LUPER APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04-CR-761] HONORABLE ROBIN F. GREEN, JUDGE

         AFFIRMED.

          Jeff Rosenzweig, for appellant.

          Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee

          HOWARD W. BRILL, Chief Justice

         Appellant 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.[1] 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.[2] 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, [3] 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.

         This 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.

          On 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.

         Under 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.

         Under 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.

         "Failure 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.

         I. Financial Motive

         Luper first contends that counsel was ineffective for failing to call Charles Mayhew to testify during the guilt phase of the trial.[4] 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.

         Robin 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, ...


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