MOTIONS FOR LEAVE TO PRESENT DOCUMENTARY EVIDENCE AND FOR
LEAVE TO ADD APPENDIX [JEFFERSON COUNTY CIRCUIT COURT, NO.
35CR-12-106] HONORABLE JODI RAINES DENNIS, JUDGE
DANKEMP, Chief Justice
court granted appellant Edmond McClinton's request to
proceed with an appeal of the denial of his petition under
Arkansas Rule of Criminal Procedure 37.1 (2017). McClinton
filed the motions before us in which he seeks permission from
this court to include in the addendum of his brief a portion
of the trial court's docket listing, a document filed in
district court and an appendix. We need not consider the
motion because it is clear that McClinton's Rule 37.1
petition did not include a meritorious claim for relief, and
the trial court did not clearly err in denying postconviction
relief. The appeal is dismissed, and the motions are moot.
filed his petition requesting relief under Rule 37 and
requesting error coram nobis relief. The trial court
originally dismissed the petition because it found the
petition was untimely under the Rule and because it did not
have jurisdiction to entertain a petition for a writ of error
coram nobis when this court had not granted permission to
McClinton to seek the writ. On appeal, this court reversed
and remanded in part, holding that the circuit court clerk
was to file-mark the petition as timely under Rule 37, and we
affirmed the trial court's dismissal to the extent that
McClinton sought the writ. McClinton v. State, 2016
Ark. 461, 506 S.W.3d 227 (per curiam).
remand, the trial court considered McClinton's claims in
the petition for Rule 37 relief. McClinton alleged that the
trial court did not have jurisdiction to convict him because
he did not receive a preliminary, first appearance,
"bind-over, " or probable-cause hearing or there
were irregularities concerning those hearings; because his
arrest was invalid in that there was no warrant or probable
cause; and because he was not indicted by a grand jury. He
alleged that he had not received due process as a result of
these errors, that there was insufficient evidence to convict
him, and that his trial attorneys were ineffective because
the due-process errors concerning his arrest and detention
were not raised.
on its review of the record, the trial court denied and
dismissed the petition. In the order, the trial court set out
its findings, which included determinations that
McClinton's claims that the evidence was insufficient
were not cognizable in the proceedings, that any trial errors
concerning his arrest or first appearance hearing would not
support relief under Rule 37, that McClinton was properly
charged by criminal information rather than by a grand jury
indictment and that McClinton had failed to show either
deficient performance or prejudice to establish ineffective
assistance of counsel.
filed his timely notice of appeal, but the record was not
submitted within the time allowed under our rules. The record
that was submitted by the circuit clerk also failed to
include McClinton's petition addressed by the order. In
addition to granting McClinton's motion to proceed with
the appeal, this court directed the circuit clerk to provide
a supplemental record with that document. The supplemental
record has been received, and McClinton has filed his brief.
appeal from an order that denied a petition for
postconviction relief will not be permitted to go forward
when it is clear that the appellant could not prevail.
Ortega v. State, 2017 Ark. 365, 533 S.W.3d 68. This
court does not reverse the denial of postconviction relief
unless the trial court's findings are clearly erroneous.
Johnson v. State, 2018 Ark. 6, 534 S.W.3d 143. A
finding is clearly erroneous when the appellate court, after
reviewing the entire evidence, is left with the definite and
firm conviction that the trial court made a mistake.
standard for ineffective-assistance-of-counsel claims is the
two-prong analysis set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Lee v. State,
2017 Ark. 337, 532 S.W.3d 43. The benchmark for judging a
claim of ineffective assistance of counsel must be
"whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot
be relied on as having produced a just result."
Strickland, 466 U.S. at 686. 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.
Lee, 2017 Ark. 337, 532 S.W.3d 43. Unless a
petitioner makes both showings, the allegations do not meet
the benchmark on review for granting relief on a claim of
ineffective assistance. Id.
claims of trial court error, incorrectly framed as
jurisdictional issues, were assertions that must be raised at
trial and on direct appeal. Ortega, 2017 Ark. 365,
533 S.W.3d 68. Such claims are not cognizable in Rule 37
proceedings because Rule 37 is not available as a direct
challenge to the admissibility of evidence or to raise
questions of trial error, even questions of constitutional
dimension. Lee, 2017 Ark. 337, 532 S.W.3d 43. For
this court to address such a question when it is raised for
the first time in Rule 37 proceedings, the appellant must
show a fundamental error sufficient to void the judgment.
Id. McClinton's allegations of error failed to
make this showing and also failed to demonstrate prejudice
that would support his claims of ineffective assistance of
counsel through a failure to raise the errors.
invalid arrest does not entitle a defendant to be discharged
from responsibility for the offense, and a flaw in the arrest
procedure does not vitiate an otherwise valid judgment or
constitute fundamental error sufficient to void a judgment.
Biggers v. State, 317 Ark. 414, 878 S.W.2d 717
(1994). The court's jurisdiction to try the accused does
not depend upon the validity of the arrest. Singleton v.
State, 256 Ark. 756, 510 S.W.2d 283 (1974). A defendant
who was fairly tried in a court of competent jurisdiction and
found guilty is not entitled to be set free on the basis of
some flaw in the manner of his arrest, and because no
prejudice results from counsel's failure to raise such a
challenge, the trial court correctly found that
McClinton's counsel were not ineffective for failing to
raise the issue. Id.
allegations of other errors regarding his pretrial detention
are much the same. An allegation concerning the lack of a
prompt first appearance or proper arraignment is not one of
fundamental error and does not render the judgment void; and
because McClinton was tried by a jury on a plea of not
guilty, he can, once again, demonstrate no prejudice
resulting from such an error. See Scott v. State,
355 Ark. 485, 139 S.W.3d 511 (2003).
court has held many times that a defendant has no
constitutional right to be indicted by a grand jury and that
amendment 21 to the Arkansas Constitution, which permits
indictment by information, is constitutional. Bennett v.
State, 307 Ark. 400, 821 S.W.2d 13 (1991). Failure to
make a meritless objection is not ineffective assistance of
counsel. Turner v. State, 2016 Ark. 96, at 4, 486
S.W.3d 757, 760. McClinton's ineffective-assistance claim
on that issue likewise fails to demonstrate prejudice.
trial court therefore correctly determined that McClinton was
not entitled to relief on his allegations of trial error or
ineffective assistance regarding those claims. As for his
final claim of insufficient evidence, a direct challenge to
the sufficiency of the evidence is not cognizable in Rule 37
proceedings. Scott v. State, 2012 Ark. 199, 406
S.W.3d 1. The ...