APPEAL
FROM THE HOT SPRING COUNTY CIRCUIT COURT [NO. 30CR-15-131]
HONORABLE CHRIS E WILLIAMS, JUDGE
Chad
M. Green, for appellant.
Leslie
Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't
Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, JUDGE
In
2016, a Hot Spring County Circuit Court jury convicted
appellant Darrell Sanders of two counts of rape. He was
sentenced to a total of forty-two years' imprisonment in
the Arkansas Department of Correction (ADC). We affirmed on
his direct appeal. Sanders v. State, 2017 Ark.App.
567, 533 S.W.3d 130. Sanders subsequently filed in the
circuit court a petition for postconviction relief pursuant
to Arkansas Rule of Criminal Procedure 37 alleging that his
trial counsel was ineffective for failing to move for a
directed verdict on the forcible compulsion count of rape.
After holding a hearing, the circuit court denied the
petition. Sanders now brings this appeal, arguing that his
trial counsel was ineffective for failing to move for a
directed verdict.
When
reviewing a circuit court's ruling on a Rule 37.1
petition, we will not reverse the circuit 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. Id.
The
benchmark question to be resolved in judging a claim of
ineffective assistance of counsel is 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. Norris v. State, 2013
Ark. 205, 427 S.W.3d 626 (per curiam). A Rule 37
petitioner's ineffective-assistance-of-counsel claims are
analyzed under the two-prong standard set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984),
which requires a petitioner to show that his counsel's
representation was deficient, and he suffered prejudice as a
result. "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." State v. Barrett, 371 Ark. 91, 96,
263 S.W.3d 542, 546 (2007).
Pursuant
to Strickland and its two-prong standard, a
petitioner raising a claim of ineffective assistance must
first show that counsel made errors so serious that counsel
was not functioning as the "counsel" guaranteed the
petitioner by the Sixth Amendment to the United States
Constitution. Williams v. State, 369 Ark. 104, 251
S.W.3d 290 (2007). A petitioner making an
ineffective-assistance-of-counsel claim must show that
counsel's performance fell below an objective standard of
reasonableness, such that counsel committed errors so serious
as to not be functioning as counsel at all. Flores v.
State, 350 Ark. 198, 205-06, 85 S.W.3d 896, 901 (2002).
A court must indulge in a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance. Springs v.
State, 2012 Ark. 87, 387 S.W.3d 143. The burden is on
the petitioner to overcome this presumption by identifying
specific acts or omissions by counsel that could not have
been the result of reasoned professional judgment. Bond
v. State, 2013 Ark. 298, at 7-8, 429 S.W.3d 185, 191-92.
Second,
the petitioner must show that, considering the totality of
the evidence before the fact-finder, counsel's deficient
performance so prejudiced petitioner's defense that he
was deprived of a fair trial. Springs,
supra. 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. Howard v. State, 367 Ark. 18, 238
S.W.3d 24 (2006). 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. Here, Sanders's
ineffective-assistance-of-trial-counsel claim fails under the
Strickland standard.
In its
March 15, 2018 findings of fact and conclusions of law, the
circuit court found that substantial evidence had been
presented to the jury on the rape charges, and therefore,
"the Court had no right to intercede and enter a
directed verdict." We agree. Evidence presented at trial
established, among other things, that Sanders trapped the
minor victim in his van, which was parked behind a local
Walmart. While parked behind the Walmart, Sanders vaginally
and anally raped the victim.
Arkansas
Code Annotated section 5-14-101(2) (Supp. 2017) defines
forcible compulsion as "physical force or a threat,
express or implied, of death or physical injury to or
kidnapping of any person." "Physical force" is
"any bodily impact, restraint or confinement, or the
threat thereof." Freeman v. State, 331 Ark.
130, 132, 959 S.W.2d 400, 401 (1998). Force is present if
"the act is against the will of the party upon whom the
act was committed." Williams v. State, 2011
Ark.App. 675, at 6, 386 S.W.3d 609, 613. We agree with the
State's assertion that the act of confining the victim in
a van at a place where the van cannot be seen for the purpose
of raping her is "restraint" such that it qualifies
as physical force under the statute.
When it
is asserted that counsel was ineffective for the failure to
make a motion or an argument, the petitioner must show that
the motion or argument would have been meritorious because
the failure to make an argument that is meritless is not
ineffective assistance of counsel. Chunestudy v.
State, 2014 Ark. 345, at 4, 438 S.W.3d 923, 927-28. In
Sanders's case, a directed-verdict motion would have been
unsuccessful because the circuit court, having seen and heard
all the evidence, expressed in its order denying Rule 37
relief that it would not have granted a directed-verdict
motion. In addition, there was evidence of forcible
compulsion--specifically from the minor victim. Considering
the totality of the evidence adduced at trial, we cannot say
that the circuit court erred in holding that counsel was not
ineffective for failing to make a motion for directed
verdict.
Sanders
did not demonstrate that counsel's deficient performance
so prejudiced his defense that he was deprived of a fair
trial; accordingly, we hold the circuit court did not err ...