FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-13-512]
HONORABLE MARCIA R. HEARNSBERGER, JUDGE
Law Firm, by: Bobby R. Digby II, for appellant.
Rutledge, Att'y Gen., by: Kent G. Holt, Ass't
Att'y Gen., for appellee.
J. GLADWIN, Judge
John David Ross filed a petition for postconviction relief
pursuant to Rule 37.1 of the Arkansas Rules of Criminal
Procedure (2016). The Garland County Circuit Court denied the
petition. Ross appeals, arguing that the circuit court erred
in denying his amended petition under Arkansas Rule of
Criminal Procedure 37 without holding an evidentiary hearing.
We assumed this appeal pursuant to Barnes v. State,
2017 Ark. 76');">2017 Ark. 76 n.1, __S.W.3d __n.1 (per curiam). For the
reasons stated below, we affirm the trial court's denial
of postconviction relief.
Garland County jury convicted Ross of sixteen counts of
possessing or viewing matter depicting sexually explicit
conduct involving a child, one count of permitting abuse of a
minor, and one count of bestiality. At the jury's
recommendation, the circuit court ordered that Ross's
sentences be served consecutively, and he received a
cumulative maximum sentence of 180 years in the Arkansas
Department of Correction pursuant to a sentencing order filed
on October 7, 2014. This court affirmed Ross's
convictions in an opinion issued on October 28, 2015. See
Ross v. State, 2015 Ark.App. 613, 474 S.W.3d 539. The
mandate from that appeal was filed on November 19, 2015.
the assistance of counsel Ross filed a timely petition for
relief under Rule 37 on January 15, 2016, with the Garland
County Circuit Court, which alleged numerous errors by trial
counsel and contained a proper verification. He also filed a
motion for leave to file an amended and enlarged Rule 37
petition on the same date, and that motion was granted by an
order filed by the circuit court on January 19, 2016. Ross
filed an amended petition on February 25, 2016, and the State
filed a response on March 24, 2016. The circuit court did not
hold a hearing on the matter, but instead, following the
parties' submissions, entered a ten-page written order
that denied relief on May 10, 2016. The trial court relied on
the parties' pleadings, as well as an extensive review of
the trial record, and concluded that the mistakes Ross
alleged trial counsel had made would have been meritless and
otherwise would not have changed the outcome of his trial. On
appeal, Ross repeats some, but not all, of the claims raised
below and argues that the trial court erred by denying these
claims for relief. The arguments that were made below but not
raised on appeal are considered abandoned. State v.
Grisby, 370 Ark. 66, 69, 257 S.W.3d 104, 107 (2007).
court will not reverse the trial court's decision
granting or denying postconviction relief unless it is
clearly erroneous. Walden v. State, 2016 Ark. 306,
at 2-3, 498 S.W.3d 725, 728-29 (per curiam); Kemp v.
State, 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). 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.
Walden, 2016 Ark. 306 at 2-3, 498 S.W.3d at 728-29.
When considering an appeal from a trial court's denial of
a Rule 37.1 petition based on ineffective assistance of
counsel, the sole question presented is whether, based on the
totality of the evidence 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. ld. Under the two-prong standard
outlined in Strickland, 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. Id.
The reviewing court must indulge in a strong presumption that
trial counsel's conduct falls within the wide range of
reasonable professional assistance. Id. The
petitioner claiming ineffective assistance of counsel has the
burden of overcoming this presumption by identifying specific
acts or omissions of trial counsel, which, when viewed from
counsel's perspective at the time of the trial, could not
have been the result of reasonable professional judgment.
Id. The second prong requires a petitioner to show
that counsel's deficient performance so prejudiced his
defense that he was deprived of a fair trial. Id.
Consequently, the petitioner must show there is a reasonable
probability that, but for counsel's errors, the
fact-finder would have had a reasonable doubt respecting
guilt, i.e., the decision reached would have been different
absent the errors. Id. A reasonable probability is a
probability sufficient to undermine confidence in the outcome
of the trial. Id. 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.
person seeking postconviction relief on a claim of
ineffective assistance that is based on the failure of
counsel to make a motion or objection must show that counsel
could have made a successful argument in order to demonstrate
the prejudice required under the Strickland test.
Breeden v. State, 2014 Ark. 159, at 6-7, 432 S.W.3d
618, 624 (per curiam). Failure to make a meritless objection
or motion does not constitute ineffective assistance of
counsel. Id.; Greene v. State, 356 Ark. 59, 70, 146
S.W.3d 871, 880 (2004).
37.3(c) provides that an evidentiary hearing should be held
in a postconviction proceeding unless the files and record of
the case conclusively show that the prisoner is entitled to
no relief. See Wooten v. State, 338 Ark. 691, 1
S.W.3d 8 (1999). The circuit court, in its discretion, can
deny postconviction relief without a hearing if it concludes
that the petitioner is entitled to no relief. Mancia v.
State, 2015 Ark. 115, 459 S.W.3d 259. Rule 37.3(a)
[i]f the petition and the files and records of the case
conclusively show that the petitioner is entitled to no
relief, the trial court shall make written findings to that
effect, specifying any parts of the files, or records that
are relied upon to sustain the court's findings.
the specific findings, there can be no meaningful review in
this court, because this court determines whether the
findings are supported by a preponderance of the evidence.
Rackley v. State, 2010 Ark. 469 (per curiam). We are
not required to scour the record in a Rule 37.1 appeal to
determine if the petition is wholly without merit when there
are no written findings. Id. When a hearing is not
held, it is the function of the circuit court to make written
addressing Ross's arguments on appeal, it is necessary to
review the evidence adduced at his trial. The trial record
demonstrates that at trial, the State presented evidence from
Agent Chris Cone of the Attorney General's Cyber Crimes
Unit that Ross confessed to viewing child pornography and
that he knew that his codefendant, Amanda Hartle, had sexual
relations with Ross's minor son. The State also presented
evidence from Agent Jeff Shackleford, a forensic analyst in
the Cyber Crimes Unit, about the contents of a computer and
phone found at Ross's residence. Ross's minor son,
M.S., also testified about having oral sex with Hartle. The
evidence included pornographic images of children contained
on Ross's laptop computer and cell phone; Ross's
allowing his girlfriend to sexually abuse his
fourteen-year-old son; and Ross's participating with his
girlfriend in her acts of bestiality with his son's dog.
Was a Hearing Required on Counsel's Failure to
Subpoena Hartle at Trial?
initially notes that his trial counsel erroneously failed to
subpoena Hartle to testify at trial. His Rule 37 petition
alleged that Hartle would testify at the Rule 37 hearing that
she had written a letter accepting responsibility for at
least some of the child pornography Ross was convicted of
possessing or viewing and would have so testified at his
trial if trial counsel had subpoenaed her. Hartle allegedly
also would have testified that Ross told her not to download
illegal pictures on his computer.
circuit court found that trial counsel was not ineffective
because Hartle had previously indicated her desire to invoke
her Fifth Amendment privilege, and the issue had been decided
on direct appeal. ...