Fletcher v. State

          Rehearing Denied January 15, 2020

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          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [NO. 60CR-16-1477], HONORABLE HERBERT T. WRIGHT, JR., JUDGE

          Roscoe Fletcher, Jr., pro se appellant.

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

         OPINION

         BART F. VIRDEN, Judge

          Appellant Roscoe Fletcher^[1] appeals from the Pulaski County Circuit Court’s denial of his petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1. Fletcher raises two points on appeal: (1) the trial court erred in failing to find that trial counsel was ineffective when she failed to investigate alibi witnesses, failed to put on an alibi defense, and failed to call alibi witnesses to testify at trial; and (2) the trial court erred when it abruptly moved the date of his evidentiary hearing and would not allow him sufficient time to put a witness on notice so she could attend and testify at the hearing. We affirm the denial of postconviction relief.

          I. Ineffective Assistance of Counsel

          In an appeal from a trial court’s denial of a petition for postconviction relief under Rule 37.1, the sole question presented is whether, based on the totality of the evidence, the trial court clearly erred in holding that counsel’s performance was not ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the two-prong Strickland test, a petitioner raising a claim of ineffective assistance of counsel must first show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Bond v. State, 2013 Ark. 298, 429 S.W.3d 185. The petitioner must also show that counsel’s performance fell below an objective standard of reasonableness. Id. There is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). The appellant has the burden of overcoming that presumption by identifying the acts and omissions of trial counsel, which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Hickey v. State, 2013 Ark. 237, 428 S.W.3d 446.

          With respect to the second prong of the Strickland test, the petitioner must show that counsel’s deficient performance so prejudiced his defense that he was deprived of a fair trial. Holloway v. State,2013 Ark. 140, 426 S.W.3d 462. Such a showing requires that the petitioner ...