THOMAS C. ORTEGA APPELLANT
STATE OF ARKANSAS APPELLEE
MOTION FOR EXTENSION OF TIME TO FILE BRIEF [GARLAND COUNTY
CIRCUIT COURT, NO. 26CR-14-533]
F. WYNNE, ASSOCIATE JUSTICE
Thomas C. Ortega was convicted of rape and sentenced as a
habitual offender to life imprisonment. Ortega v.
State, 2016 Ark. 372, 1 S.W.3d 824');">501 S.W.3d 824. Ortega timely
filed a verified pro se postconviction petition pursuant to
Arkansas Rule of Criminal Procedure 37.1 (2016), alleging
grounds of prosecutorial misconduct, trial-court error, and
ineffective assistance of counsel. The trial court denied
relief, and Ortega lodged an appeal in this court from the
denial of relief and has now filed a motion for extension of
time to file his brief. Because it is clear that Ortega
cannot prevail on appeal, we dismiss the appeal, and
Ortega's motion is moot.
appeal from an order that denied a petition for
postconviction relief will not be permitted to go forward
where it is clear that the appellant could not prevail.
Justus v. State, 2012 Ark. 91. This court will not
reverse the trial court's decision granting or denying
postconviction relief unless it is clearly erroneous.
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.
Rule 37.1 petition, Ortega merely used the term
"prosecutorial misconduct" without any supporting
facts or argument. This court has held that a claim of
prosecutorial misconduct is "an issue that could have
been raised at trial." Howard v. State, 367
Ark. 18, 27, 238 S.W.3d 24, 32 (2006). Therefore, an issue of
alleged prosecutorial misconduct is an issue that should have
been raised at trial and on direct appeal and is not
cognizable in a Rule 37.1 petition. To the extent Ortega
attempted to raise a claim of prosecutorial misconduct in his
Rule 37.1, it is not cognizable.
argument that the trial court abused its discretion when it
found sufficient evidence for the case to be presented to the
jury under one of two alternative theories for rape-that he
engaged in sexual intercourse or deviate sexual activity with
another person by forcible compulsion or that the victim was
incapable of consent because she was physically helpless-is
also not cognizable in a Rule 37.1 proceeding. Assertions of
trial-court error, even those of constitutional dimension,
must be raised at trial and on direct appeal. See
Howard, 367 Ark. at 26, 238 S.W.3d at 32; see also
Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000).
Furthermore, to the extent Ortega's challenge here can be
construed as a challenge to the sufficiency of the evidence
or a claim of actual innocence, such a challenge is a direct
attack on the judgment and is not cognizable in a Rule 37.1
proceeding. Scott v. State, 2012 Ark. 199, at 6, 406
S.W.3d 1, 4. The trial court properly denied relief, finding
that any allegation of an abuse of discretion or trial-court
error should have been raised before and was not the basis
for Rule 37.1 relief.
Ineffective Assistance of Counsel
also argued that his trial counsel was ineffective for
failing to prepare or present the affirmative defense of
"consentual sexes[, ]" for failing to argue a
specific basis on which the motion for directed verdict
"could be so had as a matter of law[, ]" and for
failing to develop evidence that would have allowed the jury
to weigh the reasonable hypothesis consistent with his
innocence. These allegations do not support an
considering an appeal from a trial 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 trial court clearly
erred in holding that counsel's performance was not
ineffective. Howard, 367 Ark. at 31-32, 238 S.W.3d
at 35-36. 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.
Ortega contends that his trial counsel did not present a
defense for consensual sex, his argument fails. Consent may
be a defense to a rape by forcible compulsion but cannot be a
defense to a rape of a person who is physically helpless
because he or she is, by definition, incapable of
consent. See State v. Parker, 2010 Ark.
173. However, raising the defense of consent is a factual
issue in a rape prosecution and should be addressed at trial
and on direct appeal. Id. at 5-6 (victim was
physically helpless at the time of sexual intercourse making
factual issue of consent irrelevant in rape prosecution).
During Ortega's direct appeal, he asked this court to
make credibility determinations and argued that
"substantial evidenced support[ed] an act of consensual
sexual intercourse." Ortega, 2016 Ark. 372, at
4, 501 S.W.3d at 827. Specifically, he argued that there was
evidence that contraindicated forcible compulsion and that
the evidence was insufficient to show that the "victim
was too intoxicated to consent to sexual intercourse."
Id. at 4-5, 501 S.W.3d at 827. Trial counsel raised
a consensual-sex defense, and the claim was addressed on
direct appeal and failed.
Ortega claims counsel should have argued a specific basis in
his motions for directed verdict so as to have them granted
as a matter of law, this court noted that "defense
counsel made a specific motion for directed verdict at the
close of the State's case, and renewed the motion at the
close of all the evidence." Ortega, 2016 Ark.
372, at 4, 501 S.W.3d at 826-27. Counsel cannot be found to
be ineffective for failing to make an argument that is
without merit. See Camargo v. State, 346 Ark. 118,
128, 55 S.W.3d 255, 262-63 (2001); see also Noel v.
State, 342 Ark. 35, 44, 26 S.W.3d 123, 129 (2000). Trial
counsel made the motions for directed verdict, and Ortega has
failed to state any additional grounds for the motion that
counsel should have or could have advanced to the trial court
that would have resulted in a directed verdict for the
counsel's failure to present evidence that would allow
the jury to weigh a reasonable hypothesis consistent with his
innocence was not ineffective assistance. A conclusory claim
without factual substantiation will not support a basis for
postconviction relief. Henington v. State, 2012 Ark.
181, 403 S.W.3d 55. Nevertheless, to the extent Ortega's
challenge here can be construed as a challenge to the
sufficiency of the evidence or a claim of actual innocence,
such a challenge is a direct attack on the judgment and is