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 ...