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.
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 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 (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. See Luper v. State, 2016 Ark. 371,
501 S.W.3d 818 (holding that petitioner failed to offer any
proof of exculpatory evidence when he did not produce phone
records allegedly showing that the rape victim was using the
phone at the time of the rape and that the victim's
mother encouraged the victim to falsely allege rape).
Appellant's
claim that the prosecutor committed misconduct by failing to
disclose his codefendant's history as a confidential
informant is not cognizable in a Rule 37 proceeding.
Airsman v. State, 2015 Ark. 409, 473 S.W.3d 549.
Claims of prosecutorial misconduct should be raised at trial
or on direct appeal and may not be raised for the first time
in a Rule 37 petition. Id.
Appellant
next argues that counsel was ineffective for failing to move
to sever his trial from that of his codefendants. Generally,
the decision whether to seek a severance is one of trial
strategy and is not grounds for postconviction relief.
Strain v. State, 2012 Ark. 42, 394 S.W.3d 294.
Unless the defendants' conflicting trial strategies go to
the essence of the defenses and are so great that both
defenses cannot be accommodated by the jury, severance is not
required, and counsel cannot be ineffective for failing to
request it. Id. In his petition below, appellant
asserted that he was prejudiced by the failure to sever his
trial because the evidence against his codefendants, who were
charged with different crimes than he was, erroneously
influenced the jury against him and confused the jury. At the
hearing, he also complained that he did not get a fair trial
because his counsel had to share time for closing arguments
with the other two attorneys. Arguments based on self-serving
statements do not meet the burden of establishing an
ineffective-assistance claim. Airsman,
supra. Appellant does not specify why the evidence
was difficult for the jury to segregate, and this conclusory
argument will not warrant postconviction relief.
Strain, supra.
Appellant
expands his severance argument on appeal to additionally
argue that his attorney may have colluded with the attorneys
of his codefendants to avoid severance by advising each
defendant not to testify. We do not address this argument. An
appellant is limited to the scope and nature of the arguments
made below, and he or she cannot raise new arguments on
appeal or add factual substantiation to the allegations made
below. Gordon v. State, 2018 Ark. 73, 539 S.W.3d
586.
Appellant's
last point is that counsel was ineffective for failing to
call any witnesses in his defense. When a petitioner alleges
ineffective assistance of counsel concerning the failure to
call witnesses, it is incumbent on the petitioner to name the
witness, provide a summary of the testimony, and establish
that the testimony would have been admissible into evidence.
Breeden v. State, 2014 Ark. 159, 432 S.W.3d 618.
Appellant satisfied none of these requirements below. On
appeal, he alleges that beneficial testimony could have been
obtained from one of his codefendants and from unnamed
"family and friends"; however, as stated above,
appellant cannot raise new ...