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Holt v. State

Court of Appeals of Arkansas, Division I

October 2, 2019

Frankie VON HOLT, Appellant
v.
STATE of Arkansas, Appellee

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[Copyrighted Material Omitted]

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          APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FCR-15-1380], HONORABLE J. MICHAEL FITZHUGH, JUDGE

          Frankie Von Holt, pro se appellant.

         Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.

         OPINION

         N. MARK KLAPPENBACH, Judge

          Appellant Frankie Von Holt was convicted by a jury of trafficking methamphetamine, possession of hydromorphone with the purpose to deliver, possession of oxycodone with the purpose to deliver, conspiracy to commit delivery of methamphetamine, and possession of drug paraphernalia. He was sentenced as a habitual offender to consecutive sentences totaling 185 years in the Arkansas Department of Correction. On direct appeal, we affirmed the convictions. Vonholt v. State, 2018 Ark.App. 53, 540 S.W.3d 312. Appellant then filed a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37. Following a hearing, the circuit court denied appellant’s petition. Appellant now appeals, and we affirm.

          Appellant raised five arguments in his petition that he argues on appeal: (1) counsel was ineffective for refusing to introduce a written confession by a codefendant accepting all responsibility for drug possession; (2) the prosecutor committed misconduct by failing to disclose a codefendant’s history as a confidential informant; (3) counsel was ineffective for failing to move to sever his trial from that of his codefendants; (4) counsel was ineffective for failing to present exculpatory evidence of a codefendant’s bandaged hand and his possession of a pill bottle; and (5) counsel was ineffective for failing to call any witnesses. At the Rule 37 hearing, appellant argued some of his points to the court and asked for a retrial, but he admitted that he had

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no evidence. The court informed appellant of his burden of proving the allegations and offered him the opportunity to put on any testimony or evidence to substantiate his allegations. Appellant presented no evidence despite his trial counsel’s presence at the hearing. The circuit court entered an order denying appellant’s claims after finding that appellant "presented nothing other than his reassertion that he wanted a new trial."

          On appeal, our appellate courts will not reverse the circuit court’s decision granting or denying postconviction relief unless it is clearly erroneous. Chatmon v. State, 2016 Ark. 126, 488 S.W.3d 501. 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 made. Id. We will affirm if a circuit court makes the correct decision even if it does so for a different reason. Id.

          Under the two-prong standard outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced petitioner’s defense. Chatmon, supra . 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. Conclusory allegations that are unsupported by facts and that provide no showing of prejudice are insufficient to warrant Rule 37 relief. Id. The burden is entirely on a petitioner to affirmatively support an ineffective-assistance-of-counsel claim with factual substantiation sufficient to overcome the presumption that counsel was effective and to demonstrate that petitioner was prejudiced by counsel’s poor representation. Id.

         Two of appellant’s points on appeal allege that counsel was ineffective due to her failure to present exculpatory evidence. Appellant argues that counsel should have introduced (1) a confession written by his codefendant claiming ownership of the drugs and (2) evidence that his codefendant had a bandaged hand to explain the lack of fingerprints found on a pill bottle discovered in appellant’s truck. At the hearing, however, appellant failed to provide any proof of this allegedly exculpatory evidence, such as the written confession itself, the codefendant’s testimony regarding the confession and his bandaged hand, or his counsel’s testimony regarding the confession and the bandaged hand. Because there is no proof, we hold that the circuit court did not err in denying relief on this claim. SeeLuper v. State,2016 Ark. 371, 501 S.W.3d 812 (holding that petitioner failed to offer ...


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