FROM THE POINSETT COUNTY CIRCUIT COURT [NO. 56CR-12-50]
HONORABLE BRENT DAVIS, JUDGE
Laurence McCulley, pro se appellant.
Rutledge, Att'y Gen., by: Kathryn Henry, Ass't
Att'y Gen., for appellee.
BRANDON J. HARRISON, Judge
Troy Laurence McCulley filed a petition for postconviction
relief pursuant to Rule 37.1 of the Arkansas Rules of
Criminal Procedure (2015), which was denied by the circuit
court. McCulley was represented by counsel in the proceedings
below, and after lodging an appeal, his postconviction
counsel filed a motion to be relieved, which was granted by
the Arkansas Supreme Court on December 10, 2015. McCulley
v. State, No. CR-817 (Ark. Dec. 10, 2015) (order
granting motion to be relieved). McCulley subsequently filed
a pro se appellant's brief, appellee responded, and
McCulley filed a pro se reply brief. After the issues on
appeal were thoroughly briefed, McCulley filed a motion for
appointment of counsel. For the reasons stated below, we
affirm the circuit court's denial of postconviction
relief, and McCulley's motion for appointment of counsel
is therefore denied.
convicted McCulley of one count of rape, three counts of
felony possession of drug paraphernalia, and one count of
misdemeanor possession of drug paraphernalia. He was
sentenced to thirty years' imprisonment for rape, and a
$1000 fine was imposed for each of the drug offenses. This
court affirmed his convictions on direct appeal. McCulley
v. State, 2014 Ark.App. 330.
filed a timely petition for postconviction relief and made
numerous allegations of ineffective assistance of counsel,
contending that his trial counsel failed to gain suppression
of certain physical evidence, failed to object to the
admission of a drug-screen analysis, and failed to object to
the admission of irrelevant evidence and testimony. A hearing
was conducted by the circuit court. The circuit court relied
on the arguments presented at the hearing as well as an
extensive review of the trial record and concluded that the
arguments and objections that McCulley alleged trial counsel
had erroneously failed to raise would have been meritless and
otherwise would not have changed the outcome of his trial. On
appeal, McCulley repeats some, but not all, of the claims
raised below and argues that the circuit 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,
jurisdiction is pursuant to footnote 1 in Barnes v.
State, 2017 Ark. 76, 511 S.W.3d 845 (per curiam). The
appellate court will not reverse the circuit 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.
considering an appeal from a circuit 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 circuit court
clearly erred in holding that counsel's performance was
not ineffective. Id. 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.
order to demonstrate the prejudice required under the
Strickland test, a 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.
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).
addressing McCulley's arguments on appeal, it is
necessary to review the evidence adduced at his trial. The
trial record demonstrates that McCulley's girlfriend,
Loretta Collette, lured her sixteen-year-old niece, A.R., to
McCulley's residence. According to the testimony of A.R.,
after arriving at McCulley's residence, she was drugged
and taken to an outbuilding behind the main house, stripped
naked, bound by her hands and feet, and raped by Collette and
McCulley. A.R. was returned to her mother hours after she had
been due home. Because of her unusual behavior, a drug test
was administered by a local physician, and the test was
positive for amphetamines. Eventually, A.R. reported to
investigators that not only had she been drugged by McCulley
and Collette, but that she had also been sexually assaulted
by them. Subsequently, Collette admitted to police that she
had participated in the assault, and based on Collette's
admissions, a search warrant for McCulley's residence was
obtained and executed. The search included the outbuilding
described by A.R. The police seized numerous items as a
result of the search, including, among other things, drug
paraphernalia and pornographic videotapes.
first point on appeal, McCulley argues that the circuit court
erred by rejecting his ineffective-assistance-of-counsel
claim that counsel had erroneously failed to gain the
suppression of all evidence seized in the search of his
residence and the outbuilding. According to McCulley, trial
counsel failed to move to suppress this evidence on the basis
that the warrant was deficient because the warrant was signed
by the presiding judge before the affidavit establishing
probable cause had been presented. McCulley maintains that
all evidence seized would have been suppressed but for the
failure of his counsel to challenge the manner in which the
search warrant had been issued.
record of the suppression hearing demonstrates that the
affiant, Officer Erik Willbanks, testified that he had
appeared before Judge Ron Hunter at 6:12 p.m. on January 16,
2012, and swore to the facts contained in the affidavit. The
affidavit itself shows that it was signed by Willbanks at
6:12 p.m.; the affidavit originally reflected that it was
signed and sworn before Judge Hunter at 6:00 p.m., but the
number six was crossed out and replaced with the number
seven. On the other hand, the related warrant signed and
issued by Judge Hunter bears a typewritten time of 6:15 p.m.
on the time discrepancy on the affidavit, McCulley argues
that the search warrant was invalid, and all items seized as
a result of its issuance should have been suppressed. The
Arkansas Supreme Court rejected a similar argument that a
search warrant was invalid based on a discrepancy between the
date that appeared on the affidavit and the date the warrant
was issued in Nance v. State, 323 Ark. 583, 597, 918
S.W.2d 114, 120-21 (1996). In that case, the supreme court
affirmed the lower court's conclusion that the warrant
was valid despite an "apparent misprision" in the
documents because the affiant had testified that he had
appeared before the judge and sworn to the facts contained in
the affidavit on the same date that the warrant had been
issued. Id. Likewise, Willbanks testified at the
suppression hearing that the affidavit was signed in the
presence of the judge. When an affidavit states sufficient
facts to establish probable cause for a search, discrepancies
in the date or time the affidavit was executed will not
invalidate a search warrant if the affiant appeared and
provided sworn testimony that cures such errors.
Nance, 323 Ark. at 597, 918 S.W.2d at 120-21;
Johnson v. State, 2015 Ark. 387, at 4-5, 472 S.W.3d
486, 488-89. The circuit court did not clearly err when it