FROM THE JOHNSON COUNTY CIRCUIT COURT [NO. 36CR-14-66]
HONORABLE WILLIAM M. PEARSON, JUDGE
Zackery W. Shadwick, pro se appellant.
Rutledge, Att'y Gen., by: Valerie Glover Fortner,
Ass't Att'y Gen., for appellee.
WAYMOND M. BROWN, Judge
Zackery Warren Shadwick was convicted of possessing or
viewing matter depicting sexually explicit conduct involving
a child, failing to register as a sex offender, and entering
a school campus as a registered sex offender. He was
sentenced to an aggregate sentence of 312 months'
imprisonment. Pursuant to Arkansas Supreme Court Rule 4-3(k)
and Anders v. California, 386 U.S. 738 (1967),
Shadwick's counsel filed a motion to withdraw, stating
there was no merit to an appeal. Shadwick's convictions
and sentences were affirmed by the Arkansas Court of Appeals.
Shadwick v. State, 2016 Ark.App. 13. The mandate
issued on February 2, 2016. On March 18, 2016, Shadwick
timely filed a verified pro se petition under Arkansas Rule
of Criminal Procedure 37.1 (2016). On June 29, 2016, the
trial court denied the petition for post conviction relief,
and Shadwick lodged an appeal from the denial.
appeal, Shadwick contends that trial counsel was ineffective
for the following reasons: failing to change the venue;
failing to object to the State's use of his past criminal
history during the guilt and innocence phase of trial which
prejudiced him; not objecting to faulty jury instructions and
failing to offer instructions to the jury regarding the
evidence of other crimes; failing to investigate and present
evidence to prove his innocence; and failing to challenge the
trial court's jurisdiction because he was in Montana at
the time of the offenses.
considering an appeal from a trial court's denial of a
Rule 37.1 petition, 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.
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, the appellate court assesses the
effectiveness of counsel under a two- prong analysis. First,
a petitioner must show that counsel's performance was
deficient. Britt v. State, 2009 Ark. 569, 349 S.W.3d
290 (per curiam). 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) (per curiam).
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.
a petitioner 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 of counsel claim . . . to address both
components of the inquiry if the defendant makes an
insufficient showing on one." Strickland, 466
U.S. at 697.
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, the appellate court will not
reverse the trial court's decision granting or denying
postconviction relief unless it is clearly erroneous.
Beavers v. State, 2016 Ark. 277, 495 S.W.3d 76. 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.
contends that his trial counsel was ineffective for failing
to seek a change in venue. Specifically, he argues that
counsel did not ask the potential jurors, "Have you seen
or read a public notification of the local sex offenders[,
]" or "Have you ever seen Defendant's picture
before?" Shadwick contends that counsel's failure to
ask these questions caused him prejudice. The trial court
determined that Shadwick's allegations were conclusory.
decision of whether to seek a change of venue is largely a
matter of trial strategy and is therefore not an issue to be
debated under Rule 37. Van Winkle v. State, 2016
Ark. 98, at 13, 486 S.W.3d 778, 787. As the trial court was
finding the jury panel qualified, it read the criminal
information which included count two-sex offender failing to
register- and the jury was made aware of the nature of the
offenses for which Shadwick was being tried. Shadwick failed
to argue the nature of any impact regarding whether the
jurors had seen his image on any notifications prior to trial
on the outcome of his trial. Trial counsel is not ineffective
for failure to make a motion or argument when petitioner
failed to show that the motion or argument would have been
meritorious. Rea v. State, 2016 Ark. 368, at 9, 501
S.W.3d 357, 364 (per curiam). By merely making a conclusory
claim that had counsel asked some specific questions about
recognizing Shadwick from public postings or notifications,
Shadwick fails to make a convincing claim that he is entitled
to postconviction relief. See Jones v. State, 2014
Ark. 448, at 6-7, 486 S.W.3d 743, 748 (per curiam) ("The
burden is entirely on the claimant to provide facts that
affirmatively support his or her claims of prejudice; neither
conclusory statements nor allegations without factual
substantiation are sufficient to overcome the presumption
that counsel was effective."); see also Detherow v.
State, 2015 Ark. 447, at 5, 476 S.W.3d 155, 159 (per
next claims counsel was ineffective for failing to object to
the State's introduction of his past criminal history
during the guilt phase of the trial pursuant to Rule 609 of
the Arkansas Rules of Evidence. Specifically, he contends
that he would have received an impartial judgment and would
not have been found guilty had evidence of his past criminal
history not been admitted, and as a result, he was
prejudiced. Below, the trial court found that Shadwick failed
to identify what, if any, criminal convictions were offered
into evidence against him, and that, if he was referring to
the criminal convictions offered against him during the
sentencing phase of his trial, he failed to demonstrate any
petitioner under Rule 37.1 has the burden of pleading facts
to support his claims, and conclusory allegations that are
unsupported by facts do not provide a basis for
postconviction relief. Henington, 2012 Ark. 181, 403
S.W.3d 55. Shadwick fails to identify the specific testimony
elicited that required an objection from his trial counsel or
that would have resulted in prejudice. The appellate court does not research or
develop arguments for appellants. Sims v. State,
2015 Ark. 363, at 11, 472 S.W.3d 107, 116. Arkansas Rule of
Evidence 609 states that for "the purpose of attacking
the credibility of a witness, evidence that he has been
convicted of a crime shall be admitted" but only if the
crime is punishable by imprisonment in excess of one year,
and the "court determines that the probative value of
admitting this evidence outweighs its prejudicial effect to a
party or a witness[.]" Shadwick's Rule 609 claim
fails to establish that trial counsel was ineffective because
Shadwick did not testify, meaning trial counsel had no basis
to make an objection to Shadwick's claims regarding his