FROM THE ARKANSAS COUNTY CIRCUIT COURT, SOUTHERN DISTRICT
[NO. 01DCR-12-75] HONORABLE DAVID G. HENRY, JUDGE.
Slater, pro se appellant.
Rutledge, Att'y Gen., by: Karen Virginia Wallace,
Ass't Att'y Gen., for appellee.
J. GLADWIN, JUDGE.
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
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.
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. The State also charged him as a habitual
offender and sought a proximity enhancement.
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.
filed a timely petition for relief under Rule 37.2 on May 29,
2015, and supplemented it by an amendment on August 25, 2015,
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
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.
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.
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
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).
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. ...