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Slater v. State

Court of Appeals of Arkansas, Division I

October 4, 2017

DONNIE SLATER APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT, SOUTHERN DISTRICT [NO. 01DCR-12-75] HONORABLE DAVID G. HENRY, JUDGE.

          Donnie Slater, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.

          ROBERT J. GLADWIN, JUDGE.

         Donnie Slater appeals the Arkansas County Circuit Court's order denying his Rule 37 petition for postconviction relief. Ark. R. Crim. P. 37.1 (2016). We assumed jurisdiction of this appeal pursuant to footnote 1 in Barnes v. State, 2017 Ark. 76, 511 S.W.3d 845 (per curiam). Slater contends that the trial court erred in denying his petition because (1) trial counsel was ineffective at trial because he failed to do an adequate pretrial investigation and properly prepare for trial; (2) trial counsel failed to make a specific directed-verdict motion causing the issue to be waived on appellate review; (3) trial counsel was ineffective for not objecting to the State's presenting evidence of Slater's prior felonies following the guilty verdict; (4) trial counsel failed to object when the trial court sentenced Slater to an illegal ten-year enhancement under Arkansas Code Annotated section 5-64-411 (Repl. 2016) because when the trial court lacked authority to impose it; (5) trial counsel was ineffective for not objecting to the State's introduction into evidence the crime-lab reports and drugs; (6) appellate counsel was ineffective for failing to discuss possible errors that were apparent on the face of the abstract and addendum; (7) appellate counsel was ordered by the Arkansas Court of Appeals to file a substituted appeal brief, and counsel failed to send Slater a copy of the substituted brief at Slater's request; (8) trial counsel was ineffective for failing to move for a mistrial when information concerning Slater's criminal history was disclosed during voir dire and during the testimony of a witness at the guilt stage of the trial; (9) trial counsel was ineffective for failing to object to the testimony of Arkansas State Police Special Agent Scott Russell; and (10) trial counsel was ineffective for failing to object to the proximity enhancement because no proof was offered during trial.

         We note, as a preliminary matter, that both the original and the second amended sentencing orders contain clerical errors in that they do not reflect that Slater was convicted as a habitual offender; however, he was charged and convicted as a habitual offender. We order the circuit court to correct the clerical error in the second amended sentencing order to reflect that Slater was convicted as a habitual offender. Accordingly, we affirm in part and remand in part for the correction of the second amended sentencing order.

         The State charged Slater by information with two counts of delivery of a controlled substance and two counts of use of a communication device in connection with the deliveries.[1] The State also charged him as a habitual offender and sought a proximity enhancement.

         Following the trial on March 14, 2013, the jury found Slater guilty of one count of delivery of a controlled substance (Count 2) and one count of use of a communication device (Count 4) and determined that the delivery had occurred within 1000 feet of a daycare facility. The jury found Slater not guilty of the other delivery and communication-device counts (Counts 1 and 3). Slater was sentenced to twenty years' imprisonment on the delivery charge and ten years' imprisonment on the communication-device charge. The circuit court sentenced Slater in accord with the jury's recommendation and ordered the sentences to run consecutively for a total of thirty years in the Arkansas Department of Correction. The ten-year proximity enhancement was added to the sentence in keeping with the jury's finding that the drug delivery occurred within 1000 feet of a day care facility. Slater appealed to this court, which affirmed his conviction on February 18, 2015. Slater v. State, 2015 Ark.App. 94. After recalling the initial mandate of March 10, 2015, we issued a final mandate on April 1, 2015.

         Slater filed a timely petition for relief under Rule 37.2 on May 29, 2015, and supplemented it by an amendment on August 25, 2015, [2] containing proper verifications and alleging a total of ten instances of ineffective assistance of counsel. The State filed a response on June 5, 2015, and the Arkansas County Circuit Court held an evidentiary hearing on September 23, 2015, during which Slater's counsel withdrew the tenth claim. The circuit court denied relief on claims one through nine in a twelve-page written order entered on November 3, 2015. Slater filed this appeal pro se on November 24, 2015, contending that the circuit court erred by denying relief on all ten grounds asserted in both his petition and his amended petition.

         We do not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous. Conley v. State, 2014 Ark. 172, 433 S.W.3d 234. A finding is clearly erroneous when, although there is evidence to support it, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed. Id. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Id.

         Our standard of review also requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984); Conley, supra. In asserting ineffective assistance of counsel under Strickland, the petitioner must first demonstrate that counsel's performance was deficient. Rose v. State, 2017 Ark.App. 355, __S.W.3d__. This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Id. The reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. The defendant claiming ineffective assistance of counsel 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. Id.

         Second, the petitioner must show that the deficient performance prejudiced the defense, which requires a demonstration that counsel's errors were so serious as to deprive the petitioner of a fair trial. Conley, supra. This requires the petitioner to show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.

         Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. We also recognize that "there 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." Anderson v. State, 2011 Ark. 488, at 3-4, 385 S.W.3d 783, 787 (quoting Strickland, 466 U.S. at 697). The concept of cumulative error is not recognized in Rule 37.1 proceedings when assessing whether a petitioner was afforded effective assistance of counsel. Bryant v. State, 2013 Ark. 305, 429 S.W.3d 193 (per curiam); State v. Hardin, 347 Ark. 62, 60 S.W.3d 397 (2001) (holding that it was reversible error for the trial court to consider cumulative error in assessing claims of ineffective assistance of counsel).

         Many of Slater's arguments on appeal are quite different from those made in both his petition and his amended petition. Several arguments have been expanded or changed, and new allegations of ineffective assistance have been added. When reviewing the circuit court's ruling on a Rule 37.1 petition, the appellant is limited to the scope and nature of the arguments that he made below that were considered by the circuit court in rendering its ruling. Pedraza v. State, 2016 Ark. 85, 485 S.W.3d 686 (per curiam). An appellant in a Rule 37.1 proceeding is limited to the scope and nature of his arguments below, see Carter v. State, 2015 Ark. 166, 460 S.W.3d 781, and issues raised for the first time on appeal, even constitutional ones, will not be considered because the circuit court never had an opportunity to rule on them. See Detherow v. State, 2015 Ark. 447, 476 S.W.3d 155. ...


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