Pafford v. State

          Rehearing Denied May 08, 2019

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

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

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

         OPINION

         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

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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 ...