APPEAL FROM THE SALINE COUNTY CIRCUIT COURT AND PRO SE MOTION
TO SUPPLEMENT APPELLANT'S BRIEF [NO. 63CR-11-344]
HONORABLE GARY ARNOLD, JUDGE
Lamont Horton, pro se appellant.
Rutledge, Att'y Gen., by: Evelyn D. Gomez, Ass't
Att'y Gen., for appellee.
2013, appellant Curtis Lamont Horton was found guilty by a
jury of aggravated residential burglary, theft of property,
and failure to appear. He was sentenced as a habitual
offender to an aggregate sentence of 708 months'
imprisonment. The Arkansas Court of Appeals affirmed.
Horton v. State, 2014 Ark.App. 250. Horton
subsequently filed in the trial court a timely, verified
petition for postconviction relief pursuant to Arkansas Rule
of Criminal Procedure 37.1 (2013). The trial court denied the
petition, and this court granted Horton's motion to
proceed with a belated appeal of the order. Horton v.
State, 2016 Ark. 193, at 1 (per curiam). Both Horton and
the State have filed briefs, and the appeal is now before us.
trial court order denying postconviction relief is affirmed.
A motion that Horton filed to supplement his brief is denied
as it is clear from the record that Horton could not prevail
in his appeal. This court has held that it will reverse the
trial court's decision granting or denying postconviction
relief only when that decision is clearly erroneous.
Carter v. State, 2015 Ark. 166, at 3, 460 S.W.3d
781, 786. 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. Sartin
v. State, 2012 Ark. 155, 400 S.W.3d 694. Applying this
standard of review, we hold that the trial court's
decision was not clearly erroneous in denying Horton's
petition for postconviction relief.
contended in his petition that he was not afforded effective
assistance of counsel at trial or on direct appeal. His
allegations were stated as conclusions; that is, there was no
factual support offered for any of the claims. For that
reason, he did not state a ground for relief under Rule 37.1,
and trial court did not err in denying the relief sought.
Conclusory allegations that are unsupported by facts do not
provide a basis for granting postconviction relief under the
Rule or provide a basis for holding an evidentiary hearing on
the allegations contained in a petition. Sandrelli v.
State, 2016 Ark. 103, at 3, 485 S.W.3d 692, 694.
of ineffective assistance of counsel are assessed under the
standard set by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984). Under
the two-prong standard in Strickland, a petitioner
seeking postconviction relief must show that his
counsel's performance was deficient and that the
deficient performance resulted in prejudice. Fukunaga v.
State, 2016 Ark. 164, at 3, 489 S.W.3d 644, 646. There
is a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance,
and the petitioner has the burden of overcoming that
presumption by identifying the acts and 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. Feuget v. State, 2015 Ark.
43, at 4, 454 S.W.3d 734, 738. Matters of trial strategy and
tactics, even if arguably improvident, fall within the realm
of counsel's professional judgment and are not grounds
for a finding of ineffective assistance of counsel. Noel
v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). From a
review of Horton's petition, the trial court's order,
and the briefs in this appeal, it cannot be said that any
allegation raised by Horton met the Strickland
standard and overcame the presumption that he was afforded
effective assistance of counsel at trial.
respect to Horton's claims of ineffective assistance of
counsel on direct appeal, the petitioner has the burden of
making a clear showing that counsel failed to raise some
meritorious issue on appeal. Moore v. State, 2011
Ark. 269 (per curiam). Counsel's failure to raise a
specific issue must have amounted to error of such magnitude
that it rendered appellate counsel's performance
constitutionally deficient under the Strickland
criteria. The petitioner must show that there could have been
a specific issue raised on appeal that would have resulted in
the appellate court's declaring reversible error.
State v. Rainer, 2014 Ark. 306, 440 S.W.3d 323,
reh'g denied, 2014 Ark. 373, 440 S.W.3d 328. It
is the petitioner's responsibility to establish that the
issue was raised at trial, that the trial court erred in its
ruling on the issue, and that an argument concerning the
issue could have been raised on appeal to merit appellate
relief. Id. Conclusory claims of ineffective
assistance of appellate counsel are insufficient to warrant a
finding that appellate counsel did not render competent
representation on direct appeal under the Strickland
standard. See Magness v. State, 2015 Ark. 185, 461
S.W.3d 345 (per curiam). Horton has fallen far short of
establishing that there was a particular meritorious issue
that appellate counsel could have raised on direct appeal but
did not. Therefore, he has not shown that he was denied
effective assistance of counsel on appeal. See Frazier v.
State, 2016 Ark. 55, 482 S.W.3d 305 (per curiam).
addition to numerous allegations of ineffective assistance of
counsel, Horton also made a series of statements in his
petition that may have been intended as claims of trial
error, such as "impartial jury was not impaneled, "
"prosecutorial misconduct during sentencing phase,
" and the statement that his sentence was illegal
because he was denied due process of law. If the allegations
were indeed intended as claims of trial error, issues that
could have been addressed at trial and on the record on
direct appeal are not grounds for relief under Rule 37.1.
Chatmon v. State, 2016 Ark. 126, at 3, 488 S.W.3d
501, 504 (per curiam), reh'g denied (Apr. 21,
2016). Furthermore, as to Horton's allegations of
prosecutorial misconduct, we have held that such claims are a
direct challenge to the judgment and not a collateral attack,
and thus those claims are outside the purview of a Rule 37.1
proceeding. See Wood v. State, 2015 Ark. 477, 478
S.W.3d 194, reh'g denied (Feb. 11, 2016).
extent that it could be said that Horton raised the legality
of the sentence imposed on him in the judgment, he did not
demonstrate that the sentence was illegal. His conclusory
statements that his trial attorney was ineffective and that
he did not receive a fair trial did not constitute a showing
that the judgment on conviction and the resulting sentences
in the three cases were illegal. Horton made the statement in
his petition that his sentence was "illegal (due
process), " but he did not explain what due-process
violation rendered the sentence illegal. A sentence is
illegal on its face when it exceeds the statutory maximum for
the offense for which the defendant was convicted. Bell
v. State, 2015 Ark. 370 (per curiam), cert.
denied, 136 S.Ct. 2485 (2016); see also Renshaw v.
Norris, 337 Ark. 494, 989 S.W.2d 515 (1999).
Horton's unexplained claim of a due-process violation did
not constitute a showing that the sentences were illegal.
While a judgment is void where there is an absence of due
process, Neal v. State, 2016 Ark. 287, at 7, ___
S.W.3d ___, ___, the petitioner must offer facts to support
the claim that his or her judgment is void. See Davis v.
State, 2013 Ark. 189 (per curiam). Horton also did not
demonstrate any other basis for concluding that any of the
three sentences imposed on him was illegal because he did not
demonstrate, or even contend, that the sentences imposed on
him exceeded the statutory maximum or that the trial court
was without the authority to impose those sentences. See
Glaze v. State, 2011 Ark. 464, 385 S.W.3d 203.
to Arkansas Code Annotated section 5-39-204(b) (Repl. 2013),
aggravated residential burglary is a Class Y felony. As a
habitual offender, Horton was subject to a sentence of not
less than ten years to forty years, or life. See
Ark. Code Ann. §§ 5-4-401(a)(1) and 5-4-501(b).
Horton's sentence of 420 months' (thirty-five
years') imprisonment, which was imposed for aggravated
residential burglary, was within statutory limits for the
of property under Arkansas Code Annotated section
5-36-103(a)(2) and failure to appear under Arkansas Code
Annotated section 5-54-120(c)(1) (Supp. 2013) are each Class
C felonies. As a habitual offender, Horton was subject to a
sentence for each offense of not less than three years'
imprisonment and not more than thirty years'
imprisonment. See Ark. Code Ann. 5-4-401 and
5-4-501(a)(2)(C). Horton's sentences of ...