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Pafford v. State

Court of Appeals of Arkansas, Division IV

April 3, 2019

JAMES PAFFORD APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE HEMPSTEAD COUNTY CIRCUIT COURT [NO. 29CR-15-112] HONORABLE DUNCAN CULPEPPER, JUDGE

          Benca & Benca, by: Patrick J. Benca, for appellant.

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

          MIKE MURPHY, Judge

         Appellant James Pafford appeals from an order of the Hempstead County Circuit Court denying his petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1. For reversal, he contends that the circuit court erred by denying him an evidentiary hearing on his Rule 37 petition. We affirm.

         I. Relevant History

         We explained the incident that led to the underlying charges in Pafford v. State, 2017 Ark.App. 700, at 2, 537 S.W.3d 302, 305:

Pafford sexually abused then twelve-year-old M.W. on two occasions in February 2015. Both encounters took place at Pafford's home. M.W. confided in his grandmother and a child-abuse-hotline call was made. Because M.W. lived primarily in the same home as Pafford, the call was of high priority and M.W. was immediately interviewed. From there, the investigation continued and was handed over to the state police. Pafford was charged with two counts of rape and two counts of sexual assault in the second degree. On February 9, 2016, the case proceeded to a jury trial.

         A Hempstead County Circuit Court jury convicted Pafford of two counts of rape and two counts of second-degree sexual assault. He was sentenced to twenty-five years' imprisonment in the Arkansas Department of Correction on each rape conviction, to run consecutively to each other, and five years' imprisonment on each sexual-assault conviction, to run concurrently with the rape convictions. Pafford, supra. On direct appeal, Pafford argued four points: (1) jury misconduct prejudiced his chances for a fair trial; (2) the circuit court erred in allowing expert testimony concerning the truthfulness of the victim's statements; (3) the circuit court erred in allowing a photo of Pafford's erect penis into evidence; and (4) the circuit court erred in not granting his new trial based on ineffective-assistance-of-counsel claims.[1] This court affirmed the convictions on December 13, 2017, and denied the petition for rehearing on January 31, 2018. Pafford sought review from the Arkansas Supreme Court, which was denied on March 29, 2018.

         On May 25, 2018, Pafford filed a verified petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. He raised one claim of ineffective assistance of counsel premised on counsel's failure to move to quash the selected jury and failure to move for a mistrial when the circuit court allegedly excluded Pafford's family from the courtroom during voir dire. Pafford argued that this deprived him of his constitutional right to a public trial. On July 16, 2018, without holding an evidentiary hearing, the circuit court denied Pafford's petition in a four-page order. The circuit court denied relief, finding that Pafford's petition did not comply with the formatting requirements as required by Rule 37.1 and that Pafford failed to state how he was prejudiced by the alleged error of his counsel. This timely appeal followed.

         II. Standard of Review

         We do not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous. Vaughn v. State, 2017 Ark.App. 241, at 7, 519 S.W.3d 717, 721. A finding is clearly erroneous when, although there is evidence to support it, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed. Id. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Id.

         Our standard of review also requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984). Id. In asserting ineffective assistance of counsel under Strickland, the petitioner must first demonstrate that counsel's performance was deficient. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Id. The reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.

         Second, the petitioner must show that the deficient performance prejudiced the defense, which requires a demonstration that counsel's errors were so serious as to deprive the petitioner of a fair trial. Id. This requires the petitioner to show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Id. A ...


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