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Williams v. State

Court of Appeals of Arkansas, Division II

January 30, 2019

DAMEION WILLIAMS APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE POPE COUNTY CIRCUIT COURT [NO. 58CR-14-432] HONORABLE WILLIAM M. PEARSON, JUDGE.

          Omar F. Greene, for appellant.

          Leslie Rutledge, Att'y Gen., by: Brooke Jackson Gasaway, Ass't Att'y Gen., for appellee.

          WAYMOND M. BROWN, Judge

         Appellant Dameion Williams appeals from the order of the Pope County Circuit Court denying his petition for Rule 37 postconviction relief. He contends that the circuit court erred in failing to hold an evidentiary hearing on his claims of ineffective assistance of counsel. We affirm.

         Williams was convicted by a jury of aggravated robbery, attempted murder in the first degree, and battery in the first degree. He was sentenced to an aggregate term of 35 years' incarceration in the Arkansas Department of Correction. His conviction and sentence were affirmed by this court in Williams v. State, 2017 Ark.App. 198, 517 S.W.3d 446. Williams then filed a petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2017), raising claims of ineffective assistance of counsel. Without holding an evidentiary hearing, the circuit court entered an order with written findings denying his request for postconviction relief. Williams then appealed the circuit court's denial of his Rule 37 petition. Noting abstracting deficiencies and citing noncompliance with Arkansas Supreme Court Rule 4-2(a)(5), we ordered Williams to file a substituted abstract, brief, and addendum that complies with our rules.

         Williams filed his new brief, correcting the deficiencies in the abstract as ordered. However, we note that Williams not only corrected his abstract but also made changes to the argument portion of his brief, adding a claim that his counsel was ineffective in regard to the cross-examination of the victim, Allicia Brown. We will not address the merits of this new claim for two reasons.

         As an initial matter, Rule 37 provides that all grounds for postconviction relief must be asserted in the original petition. Ark. R. Crim. P. 37.2(b); Hayes v. State, 2011 Ark. 327, 383 S.W.3d 824. Because we do not consider issues that are raised for the first time on appeal, appellant's argument with respect to the cross-examination of the victim is not preserved for our review. See Rasul v. State, 2015 Ark. 118, 458 S.W.3d 722.

         Secondly, we take the opportunity to note that the changes made to the argument section of Williams's substituted brief, in which he added an additional claim for relief, went beyond the scope of our rebriefing order. In Hall v. State, the State pointed out that the abstract section of Hall's brief was deficient. 324 Ark. 431, 921 S.W.2d 929 (per curiam). In response, Hall sought permission, which the court granted, to correct the abstract and file a substituted brief. Id. In his new brief, Hall not only corrected the abstract but rewrote the argument section, as well. Id. The State then moved to strike Hall's substituted brief, or alternatively, asked the court to consider only Hall's original brief. Id. The supreme court directed that Hall's appellate brief properly contained the substituted abstract and the original argument. Id. Despite the State's failure to move for such a remedy here, we hold that the same outcome is proper in the case at bar.

         On appeal from a trial court's ruling on a petitioner's request for Rule 37 relief, this court will not reverse the trial court's decision granting or denying postconviction relief unless it is clearly erroneous. Hogan v. State, 2013 Ark. 223. 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.

         On appeal, Williams argues that the circuit court erred in not holding an evidentiary hearing on his ineffective-assistance-of-counsel claims. He specifically contends that his counsel was ineffective (1) for failing to adequately prepare for trial, (2) for failing to effectually cross-examine Detective Barker, (3) for failing to obtain a ruling on his proposed jury instruction, and (4) for submitting a subpar appellate brief to this court on direct appeal.

         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, 104 S.Ct. 2052 (1984). Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must 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 his counsel's performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.

         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. 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. Additionally, conclusory statements that counsel was ineffective cannot be the basis of postconviction relief. Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783.

         For his first point on appeal, Williams argues that his trial counsel provided ineffective assistance because he was inadequately prepared for trial. Specifically, Williams asserts that counsel waited until the last minute to subpoena Zach Stokes, the co- defendant. Williams argues that he expected Stokes to exonerate him by testifying that while the ...


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