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Turner v. State

Supreme Court of Arkansas

December 1, 2016

BRYANT E. TURNER APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-12-921] HONORABLE CHARLES E. CLAWSON, JR., JUDGE

         AFFIRMED.

          Bryant E. Turner, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.

          PER CURIAM

         In 2013, appellant Bryant E. Turner was found guilty of aggravated robbery and theft of property with a firearm enhancement and was sentenced to life imprisonment in case number 23CR-12-921 in the Faulkner County Circuit Court.[1] On direct appeal from the judgment, Turner challenged the sufficiency of the evidence to support the convictions. We affirmed. Turner v. State, 2014 Ark. 415, 443 S.W.3d 535.

         On December 18, 2014, Turner timely filed in the trial court a verified pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013) seeking to vacate the judgment on the grounds that he was denied effective assistance of counsel and that he was denied a fair and impartial trial because the trial judge was aggravated with him and the jury was all white, as were the victims. In 2015, Turner filed an amended petition in which he enlarged on the claims raised in the original petition. After a hearing was held, the petition was denied, and Turner brings this appeal.

         When considering an appeal from a trial court's denial of a Rule 37.1 petition when the petition was based on claims that counsel was ineffective, 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. The petitioner must show that, 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.

         Our standard of review in Rule 37.1 proceedings is that, on appeal from a trial court's ruling on a petitioner's request for Rule 37.1 relief, this court will not reverse the trial court's decision granting or denying postconviction relief unless it is clearly erroneous. Houghton v. State, 2015 Ark. 252, at 5, 464 S.W.3d 922, 927. 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.; Kemp v. State, 347 Ark. 52, 60 S.W.3d 404 (2001).

         Turner first argues in this appeal that the trial court erred by ruling that his attorney was not ineffective for failing to raise a "constitutional challenge" to the victims' inability to definitively identify him as the perpetrator.[2] We first note that the trial court did not specifically rule on the allegation, which was contained in Turner's original Rule 37.1 petition. The trial court merely held that there was not sufficient factual support for Turner's allegations on which the court could grant relief. If Turner desired a more specific ruling, it was his burden to request it. An appellant has an obligation to obtain a ruling on any omitted issues if those issues are to be considered on appeal. Chatmon v. State, 2016 Ark. 126, at 8, 488 S.W.3d 501, 506, reh'g denied (Apr. 21, 2016).

         Moreover, even if it could be said that the trial court reached the issue when it declared that Turner failed to state facts to support his claims of ineffective assistance of counsel, there was no error because Turner's assertion that counsel could have raised a constitutional challenge to the victims' identification was entirely without explanation for a basis on which counsel could have challenged the identification. When the petitioner under the Rule does not state a ground on which counsel could have based an objection, he has not established that trial counsel was remiss in not objecting. Wedgeworth v. State, 2013 Ark. 119, at 5 (per curiam). An appellant must do more than allege prejudice-he must demonstrate it with facts. Id. at 5-6.

         In a similar claim, Turner next contends that the trial court erred in rejecting his argument "on positive identification" because the victims' identification of him as the assailant was uncertain and eyewitness testimony is inherently suspect. It is clear that Turner is contending that the evidence was not sufficient to sustain the judgment. We have repeatedly held that a claim of actual innocence or other attack on the weight of the evidence to support the judgment is a direct challenge to the sufficiency of the evidence that is not cognizable in a Rule 37.1 proceeding. See Van Winkle v. State, 2016 Ark. 98, at 11, 486 S.W.3d 778, 787; see also Scott v. State, 2012 Ark. 199, 406 S.W.3d 1. The sufficiency of the evidence was a matter to be settled at trial and on the record on direct appeal. Henson v. State, 2015 Ark. 302, at 7, 468 S.W.3d 264, 269 (per curiam). Likewise, the issue of the credibility of a witness is not a ground for Rule 37.1 relief. Id. ...


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