[Copyrighted Material Omitted]
FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. 66FCR-15-1380], HONORABLE J. MICHAEL FITZHUGH, JUDGE
Frankie Von Holt, pro se appellant.
Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for
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
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."
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.
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.
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 ...