APPEAL FROM SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH
DISTRICT [NO. 66FCR-14-633A] HONORABLE J. MICHAEL FITZHUGH,
F. Sylvester, pro se appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
R. BAKER, ASSOCIATE JUSTICE
Ardwin Sylvester appeals from the denial of his pro se
petition for postconviction relief filed pursuant to Rule
37.1 (2016) of the Arkansas Rules of Criminal Procedure. On
appeal, Sylvester raises three grounds to reverse the trial
court's order: his trial counsel was ineffective for
failing to call his mother, Wanda Mata, as a mitigation
witness to provide testimony describing his history of being
sexually assaulted as a child and his history of mental
illness; his trial counsel failed to obtain copies of a DNA
report that was inconclusive in linking Sylvester to the
crime; and the trial court erred when it denied his pro se
posttrial motion for new trial. From a review of the record,
we find no error because the decision not to call Wanda Mata
as a mitigation witness was a matter of trial strategy;
Sylvester's claim regarding the alleged inconclusive DNA
report is waived on appeal; and Sylvester's claim with
respect to the trial court's error in denying his motion
for a new trial is not cognizable in a Rule 37.1 proceeding.
We therefore affirm.
14, 2015, Sylvester was convicted by a jury of kidnapping,
rape, and aggravated robbery and was given the maximum
sentence of three terms of life imprisonment. We affirmed the
convictions and sentences. Sylvester v. State, 2016
Ark. 136, 489 S.W.3d 146. Sylvester then filed a timely
petition pursuant to Rule 37.1 that raised multiple
ineffective-assistance-of-counsel claims. After the trial
court initially denied Sylvester's petition, Sylvester
filed a motion for reconsideration. In response, the trial
court withdrew its original order denying Sylvester's
petition and conducted two separate hearings on the matter.
The testimony of Sylvester's trial counsel and
Sylvester's mother was presented at the second hearing.
During the hearings, Sylvester raised an additional
ineffective-assistance-of-counsel claim by arguing that his
trial counsel failed to obtain the inconclusive DNA report.
The trial court entered an order denying relief. While the
trial court specifically addressed the claims set forth in
Sylvester's Rule 37.1 petition, it did not rule on the
additional ineffective-assistance-of-counsel allegation
raised during the hearings.
an appellant's obligation to obtain a ruling to preserve
an issue for appellate review. Fisher v. State, 364
Ark. 216, 223, 217 S.W.3d 117, 123 (2005) (citing
Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000)).
Because Sylvester failed to obtain a ruling from the trial
court on the allegation surrounding the DNA report, the issue
is not preserved for review on appeal. Moreover, of the
multiple ineffective-assistance-of-counsel claims raised in
his Rule 37.1 petition and ruled on by the trial court,
Sylvester raises only one of those claims in his argument on
appeal. Arguments made to the trial court but not included in
the arguments on appeal are considered abandoned. Jordan
v. State, 356 Ark. 248, 256, 147 S.W.3d 691, 696 (2004)
(citing Echols v. State, 344 Ark. 513, 42 S.W.3d 467
(2001)). As Sylvester has abandoned the majority of his
ineffective-assistance-of-counsel claims, we address the sole
attorney-error claim preserved on appeal-that his trial
counsel erroneously failed to call his mother as a mitigation
considering an appeal from a trial court's denial of a
Rule 37 petition, the sole question presented is whether,
based on a 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. Henington v. State, 2012 Ark. 181, at
3-4, 403 S.W.3d 55, 58-59. Pursuant to Strickland,
we assess the effectiveness of counsel under a two-prong
analysis. First, a claimant must show that counsel's
performance was deficient. Id. Counsel is presumed
effective, and a petitioner, in claiming deficiency, must
show that trial counsel's representation fell below an
objective standard of reasonableness. Id. (citing
Strickland, 466 U.S. at 688). 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. Id. As
explained below, the second prong of the Strickland
test need not be considered.
is no reason for a court deciding an
ineffective-assistance-of-counsel claim to address both
components of the inquiry if a petitioner makes an
insufficient showing on one. Springs v. State, 2012
Ark. 87, at 4, 387 S.W.3d 143, 148 (citing
Strickland, 466 U.S. at 697). This court has
repeatedly held that matters of trial strategy and tactics,
even if arguably improvident, fall within the realm of
counsel's professional judgment and are not grounds for a
finding of ineffective assistance of counsel. Id. at
22, 387 S.W.3d at 158. The decision whether to call a
particular witness is a matter of trial strategy that is
outside the purview of Rule 37. Noel v. State, 342
Ark. 35, 42, 26 S.W.3d 123, 128 (2000). Here, the record
demonstrates that Sylvester's trial counsel testified
that he had spoken with Sylvester's mother before, and at
the time of, trial and made the strategic decision that her
testimony would harm rather than help Sylvester, in that she
had shown a tendency to blame Sylvester's parole officer
for his crimes. Because the decision not to call
Sylvester's mother as a witness falls within the realm of
trial counsel's professional judgment, the trial court
did not clearly err when it denied this claim of ineffective
assistance of counsel.
remaining ground for reversal is a claim of trial-court
error. Sylvester contends that the trial court erred when it
summarily denied his pro se motion for a new trial filed
pursuant to Rule 33.3 (2015) of the Arkansas Rules of
Criminal Procedure. Sylvester maintains that he was entitled
to a new trial based on the twelve claims raised in his pro
se posttrial motion.
review of the record demonstrates that Sylvester filed a pro
se motion for new trial that alleged multiple claims of
ineffective assistance of counsel and that he also filed pro
se motions for appointment of counsel and an evidentiary
hearing. These pro se posttrial motions were filed after the
notice that appealed the underlying judgment of conviction
had been filed by Sylvester's trial counsel. However,
even though a notice of appeal had been filed, the record on
direct appeal was not lodged until June 18, 2015, two hours
after the trial court entered its order denying
Sylvester's posttrial motions. Therefore, at the time the
trial court filed the order denying relief, it had
jurisdiction of the matter, and the order was subject to
review on direct appeal. See Myers v. Yingling, 369
Ark. 87, 89, 251 S.W.3d 287, 290 (2007) (Once the record is
lodged in the appellate court, the circuit court no longer
exercises jurisdiction over the parties and the subject
matter in controversy.).
the denial of his posttrial motions, Sylvester lodged a
timely pro se notice of appeal pursuant to Arkansas Rule of
Appellate Procedure-Criminal 2(b) (2015). See Ayala v.
State, 365 Ark. 192, 194, 226 S.W.3d 766, 768 (2006) (To
perfect an appeal of the denial of a posttrial motion, a
party must amend the previously filed notice of appeal within
thirty days from the date the motion has been disposed of by
the trial court.). This court has recognized that relief may
be awarded a defendant on direct appeal when a motion for new
trial has been filed alleging
ineffective-assistance-of-counsel. Missildine v.
State, 314 Ark. 500, 507, 863 S.W.2d 813, 818 (1993).
Sylvester's timely pro se notice of appeal to include an
appeal from the trial court's denial of his motion for a
new trial preserved the issue for review on direct appeal.
despite Sylvester's supplemental notice of appeal, his
appointed appellate counsel did not take steps to preserve
the issues raised in the motion for new trial or otherwise
challenge the trial court's order denying Sylvester's
pro se posttrial motions. Thus, the issue of trial-court error
related to the denial of Sylvester's motion for new trial
could have been raised and reviewed on direct appeal, but for
appellate counsel's failure to do so.
Rule 37 does not provide a remedy when an issue could have
been raised in the trial or argued on appeal. Howard v.
State, 367 Ark. 18, 26-27, 238 S.W.3d 24, 32 (2006)
(citing Camargo v. State, 346 Ark. 118, 55 S.W.3d
255 (2001)). However, there is an exception to this general
rule for errors that are so fundamental as to render the
judgment of conviction void and subject to collateral attack.
Id. (citing Rowbottom v. State, 341 Ark.
33, 13 S.W.3d 904 (2000) (double-jeopardy claim was
fundamental claim); Collins v. State, 324 Ark. 322,
920 S.W.2d 846 (1996) (right to twelve-member jury);
Jeffers v. State, 301 Ark. 590, 786 S.W.2d 114
(1990) (lack of jurisdiction of trial court)).
Sylvester's claim of trial-court error in this instance
does not meet the fundamental-error standard. Because the