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England v. State

Court of Appeals of Arkansas, Division III

February 21, 2018



          Short Law Firm, by: Lee D. Short, for appellant.

          Leslie Rutledge, Att'y Gen., by: Ashley Argo Priest, Ass't Att'y Gen., for appellee.

          ROBERT J. GLADWIN, Judge.

         Appellant James England filed a petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2016) on July 7, 2016, and with leave of the Pulaski County Circuit Court, he filed an amended petition for relief, which was denied on March 29, 2017, without a hearing. England filed a motion to reconsider, clarify, and preserve, but the circuit court denied that motion by order filed on April 26, 2017, also without a hearing. England argues that the circuit court committed reversible error in denying his amended petition without holding an evidentiary hearing.

         A Pulaski County jury convicted England of one count of rape and two counts of incest based on the allegations of his two stepdaughters. He was sentenced to concurrent terms of imprisonment in the Arkansas Department of Correction-fifteen years on the rape charge and ten years on each incest charge in its sentencing order filed on May 19, 2015. This court affirmed England's convictions in an opinion issued on April 20, 2016. See England v. State, 2016 Ark.App. 211, 489 S.W.3d 721. The mandate from that appeal was filed on May 12, 2016.

         On July 7, 2016, with assistance of counsel, England filed a timely petition for relief under Rule 37 with the Pulaski County Circuit Court, alleging numerous errors by trial counsel and containing a proper verification. He also filed a motion for leave to file an amended and enlarged Rule 37 petition on the same date, and that motion was granted by an order filed by the circuit court on August 22, 2016. England filed an amended petition on October 17, 2016, the State filed a response on December 20, 2016, and England filed a reply to the State's response on December 28, 2016. The circuit court did not hold a hearing on the matter, but instead, following the parties' submissions, entered a sixteen-page written order on March 29, 2017, that denied relief. England filed a motion to reconsider, clarify, and preserve, but the circuit court denied that motion by order filed on April 26, 2017, also without a hearing. The circuit court relied on the parties' pleadings, as well as an extensive review of the trial record, and concluded that the mistakes that England alleged trial counsel had made would have been meritless and otherwise would not have changed the outcome of his trial. On appeal, England repeats some, but not all, of the claims raised below and argues that the circuit court erred by denying these claims for relief. 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, 107 (2007).

         This 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; 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. When 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 trial 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.

         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 in order to demonstrate the prejudice required under the Strickland test. 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).

         Arkansas Rule of Criminal Procedure 37.3(c) provides that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief. See Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999). The circuit court, in its discretion, can deny postconviction relief without a hearing if it concludes that the petitioner is entitled to no relief. Mancia v. State, 2015 Ark. 115, 459 S.W.3d 259. Rule 37.3(a) states that

[i]f the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court's findings.

         Without the specific findings, there can be no meaningful review in this court, because this court determines whether the findings are supported by a preponderance of the evidence. Rackley v. State, 2010 Ark. 469. We are not required to scour the record in a Rule 37.1 appeal to determine if the petition is wholly without merit when there are no written findings. Id. When a hearing is not held, it is the function of the circuit court to make written findings. Id.

         Before addressing England's arguments on appeal, it is necessary to review the evidence adduced at his trial. The trial record demonstrates that the State presented testimony from England's ex-wife, Peggy England (now Stane), and former stepdaughters, L.B. and S.B., who detailed the control and manipulation England exerted over their lives, including repeated threats to kill himself to get them to behave in ways he wanted. Other witnesses for the State included Mark Brice, criminal investigator for the Arkansas State Police, who testified regarding the investigation. The State also presented testimony from Richard Love, a cellmate of England's, who testified about information England volunteered to him about the sexual abuse of his stepdaughters. Debbie Keathley, employer of one of the stepdaughters, S.B., testified for the State about her interaction with S.B. and the effect that England had on her. The State presented testimony from England's brother, Cleo England, about the general family dynamics. Danny Lawson and Kenney Munn, lifelong friends of England's, testified for the State, indicating that they knew about rumors of inappropriate relations between England and S.B. but that they never personally observed anything of concern. Dr. Kevin Claybrook, England's urologist, presented extensive testimony for the State regarding England's medical treatment. Ray Byrd, England's former employer and friend, provided testimony for the State about his past dealings with England both personally and professionally. England testified on his own behalf and denied all the allegations against him.

         I. Failure to Obtain Phone Records

         On the charges against England for rape and two counts of incest, the allegations were that England engaged in sexual relations with his stepdaughters. At trial, it was largely a matter of credibility between England and his two stepdaughters, who were the only ones that professed actual knowledge of the offenses. England claims that his ability to prove when he was on the road as a truck driver was important. England submits that one way to support the notion that he was on the road is with call records to show that he was calling or texting people in other states and calling or texting Peggy, his wife, or the alleged victims, as he would presumably not be calling or texting Peggy or the alleged victims during times he was at the residence in Perry County.

         He points out that L.B. alleged that England texted her hundreds of times in the mornings to come into his room and have sex with him. At trial, L.B. testified, "I don't know what he said but it was always a text to come in there." Considering L.B.'s statement, along with her claim that England had sex with her approximately 400 times, England states that there should be hundreds of text messages around 6:30 a.m. when Peggy would leave for work. As pleaded, those cell-phone records refute this allegation. There are no records of either morning text messages or phone calls between England and L.B. in the record before us. England maintains that this evidence would have destroyed L.B.'s credibility and there is a reasonable probability that the evidence would have resulted in a not-guilty verdict on the rape claim.

         Additionally, there is a reasonable probability that if one alleged victim, L.B., was discredited, it would have resulted in a not-guilty verdict on both claims. He urges that there is no strategic or tactical reason for not acquiring the phone records. The cell-phone records, as pleaded, are currently in postconviction counsel's possession; however, because there was no hearing, they are not in the record for this court's review.

         England submits that the circuit court denied his claim because England did not attach the phone records to his Rule 37 petition. He maintains that the circuit court had no authority for its claim that he should have attached 7000 pages of phone records to his Rule 37 petition. He claims that neither this court nor our supreme court has ever made it a requirement to attach evidence to the petition. Petitions routinely do not include attached evidence, and he urges that no court should make it a requirement. He cites Rackley, supra, for the proposition that attaching records to the petition would obviate the entire purpose of the evidentiary hearing. He urges that this court should not permit the circuit court to institute new requirements that contravene precedent from the Arkansas Supreme Court.

         We hold that England's assertion, that the circuit court's denial creates a new requirement, is without merit. As an initial matter, England's reliance on Rackley, supra, is distinguishable. Rackley involved an appeal from a circuit court's dismissal of a Rule 37 petition where the circuit court neither held a hearing nor issued written findings. Id. Here, after filing his initial petition for postconviction relief, England moved to amend and enlarge the petition, and the motion was granted. Contrary to England's argument, there is no authority that prevented him from attaching these phone records to his amended Rule 37 petition, and the circuit court was not attempting to create a new rule.

         Although England claims now that he has approximately 7000 pages of phone records, England fails to mention whose phone records he obtained, and it is not clear if he is speaking about just his own phone records or if he somehow obtained others. His claim that exculpatory evidence could be found in the phone records is mere speculation and precluded from Rule 37 relief. Simpson v. State, 355 Ark. 294, 138 S.W.3d ...

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