APPEAL
FROM THE JOHNSON COUNTY CIRCUIT COURT [NO. 36CR-15-89]
HONORABLE WILLIAM M. PEARSON, JUDGE
John
Wesley Hall and Sarah M. Pourhosseini, for appellant.
Leslie
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
N.
MARK KLAPPENBACH, Judge
Appellant
Fred Albert Kauffeld was convicted by a Johnson County jury
of second-degree murder, first-degree murder, and residential
burglary. Appellant was sentenced to concurrent prison terms
of "0 months," twenty-eight years, and five years,
respectively. The charges arose from a burglary at the home
of Bill Nobles and the death of an auxiliary sheriff's
deputy who had responded to the call. Appellant's direct
appeal was affirmed by our court in Kauffeld v.
State, 2017 Ark.App. 440, 528 S.W.3d 302. Appellant
filed a petition for postconviction relief pursuant to
Arkansas Rule of Criminal Procedure 37 asserting that (1) his
two murder convictions violated double jeopardy and (2) his
counsel was ineffective for failing to request a change of
venue. The circuit court entered an order denying
appellant's petition without conducting an evidentiary
hearing. Appellant appeals. The State acknowledges that
although it was permitted to try appellant on two alternative
theories of murder, only one murder conviction is permissible
under the law. We reverse and remand on the double-jeopardy
issue, and we affirm as to the venue issue.
We do
not reverse the denial of postconviction relief unless the
circuit court's findings are clearly erroneous.
Johnson v. State, 2018 Ark. 6, at 2, 534 S.W.3d 143,
146. A finding is clearly erroneous when the appellate court,
after reviewing the entire evidence, is left with the
definite and firm conviction that the circuit court made a
mistake. Id.
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 v. Washington, 466 U.S. 668 (1984).
Pursuant to Strickland, we assess the effectiveness
of counsel under a two-prong standard. First, a petitioner
raising a claim of ineffective assistance of counsel must
show that his counsel's performance fell below an
objective standard of reasonableness. Mancia v.
State, 2015 Ark. 115, 459 S.W.3d 259. A court must
indulge in a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance. Osburn v. State, 2018 Ark.App. 97, 538
S.W.3d 258. Second, the petitioner must show that
counsel's deficient performance so prejudiced
petitioner's defense that he was deprived of a fair
trial. Id. 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. Additionally, conclusory
statements that counsel was ineffective cannot be the basis
for postconviction relief. Id.
Appellant's
first argument relates to a double-jeopardy issue. The State
presented two theories to support its allegation that
Kauffeld committed capital murder. One theory rested on the
allegation that he intentionally shot and killed a law
enforcement officer acting in the line of duty, and it
resulted in the jury's finding of guilt on second-degree
murder (count 1). The other theory rested on the allegation
that he killed a person in the course of or in immediate
flight from residential burglary, and it resulted in the
jury's finding of guilt on first-degree murder (count 2).
The circuit court received those guilty verdicts and then
moved the trial along to the sentencing phase.
The
circuit court instructed the jury that "there will be no
sentencing instructions or verdict forms provided to
you" on second-degree murder because that was an
"alternative count" to first-degree murder. The
jury was instructed on the possible range of sentencing for
first-degree murder and for residential burglary. The jury
deliberated and returned a sentence of twenty-eight years for
first-degree murder and five years for residential burglary,
recommending concurrent sentences. The circuit court accepted
those sentences. The sentencing order, however, reflects
three convictions and sentences: second-degree murder
("0 months"), first-degree murder (twenty-eight
years), and residential burglary (five years).
In his
Rule 37 petition, appellant argued to the circuit court that
the two murder convictions violate the rule against double
jeopardy. Collateral attacks on a judgment are cognizable in
a postconviction challenge to determine whether a judgment
was void because it violated fundamental constitutional
rights. Jackson v. State, 2013 Ark. 19. Appellant
argued that the first-degree murder conviction should be
vacated because it was count 2, and thus second in time to
second-degree murder in count 1. The State responded that
having both convictions on the sentencing order was a
violation of the double-jeopardy clause but was merely a
clerical error that required correction by eliminating the
erroneous conviction and "0" sentence for
second-degree murder. The circuit court determined that the
jury did not consider multiple punishments for the same
homicide, appellant was sentenced only on first-degree
murder, and he was not subjected to multiple punishments. The
circuit court found that the "entry of '0'
months in the sentencing order amounts to a clerical error
and shall be corrected by entry of an order Nunc Pro
Tunc." No such corrected sentencing order is present in
the record before us.
A
double-jeopardy argument constitutes an attack on a judgment
cognizable in a postconviction challenge because it concerns
violation of a fundamental constitutional right.
Jackson, supra. A defendant cannot object
to a double-jeopardy violation until he has actually been
convicted of the multiple offenses, because it is not a
violation of the prohibition against double jeopardy for the
State to charge and prosecute on multiple and overlapping
charges. Brown v. State, 347 Ark. 308, 65 S.W.3d 394
(2001). It is only after the jury returns guilty verdicts on
both offenses that the circuit court would be required to
determine whether convictions could be entered as to both
based on the same conduct. Id. In this case, the
circuit court did make that determination, finding that only
a single punishment could be entered for committing only one
murder.
The
disagreement here is as to the proper remedy for the mistake
evident on the sentencing order. Appellant argues on appeal
that we must vacate the first-degree murder conviction that
resulted in the twenty-eight-year sentence and remand for
resentencing on the second-degree murder conviction.
Appellant provides no supportive or persuasive authority to
support his "timing" theory, and he acknowledges
that he could not find any such supportive authority. It was
obvious to the circuit court, and it is likewise obvious to
our court, that the entry of a conviction and sentence on
second-degree murder was a mere clerical error.
A true
clerical error is one that arises not from an exercise of the
court's judicial discretion but from a mistake on the
part of its officers. Lewis v. State, 2017 Ark. 211,
521 S.W.3d 466. The State proceeded on two theories of
murder, but the jury considered punishment only as to
first-degree murder. The jury rendered a sentence only as to
first-degree murder, not second-degree murder. We reverse the
circuit court's order denying postconviction relief and
remand for the circuit court to enter a proper sentencing
order that correctly reflects that appellant was convicted of
and sentenced for the commission of first-degree murder and
residential burglary.
For his
second point on appeal, appellant asserts that his trial
counsel was ineffective for failing to file a motion seeking
a change of venue. He maintains that extensive pretrial
publicity prevented him from receiving a fair trial in
Johnson County. Specifically, he alleges that there were at
least nineteen newspaper articles published, there was
repeated television coverage, and there were Facebook posts
about this case, which painted the deputy in glowing terms
and appellant in negative terms. This extensive pretrial
publicity, he argues, tainted the jury pool and deprived him
of a fair trial. Appellant contends that he asked his counsel
to seek a change of venue, but his counsel replied that
"he traded that issue for the State taking the death
penalty off the table." Appellant asserts that
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