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.
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 (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
demonstrate a reasonable probability that the
fact-finder's decision would have been different absent
counsel's errors. Id. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome of the trial. Id. Unless a petitioner makes
both showings, it cannot be said that the conviction resulted
from a breakdown in the adversarial process rendering the
result unreliable. Id. There is no reason for a
court deciding an ineffective-assistance-of-counsel claim to
address both components of the Strickland standard
if the petitioner makes an insufficient showing on one of the
prongs. Id.
II.
Procedural History and Background
At
trial, the testimony revealed that on the evening of March
20, 2016, Willie Wilson was visiting in the home of his
friend, Cassyophis Williams, when two men-a younger man with
dreadlocks and an older man wearing masks and carrying
guns-entered Williams's residence and robbed them. At
trial, Wilson identified Fletcher as the older robber. A
Pulaski County jury convicted Fletcher of aggravated
residential burglary, theft of property, and aggravated
robbery. He was sentenced as a habitual offender to an
aggregate term of forty-one years' imprisonment. We
affirmed his convictions on direct appeal to this court.
Fletcher v. State, 2018 Ark.App. 113, 543 S.W.3d
547.
Fletcher
then filed a petition for postconviction relief, arguing that
trial counsel, Brandy Turner, had provided ineffective
assistance because she failed to investigate and interview
two potential witnesses: his girlfriend and alibi, Charlotte
Garrett, and an alleged co-perpetrator, Lisa
Overton.[2]
An
evidentiary hearing was scheduled for October 3, 2018, but
the date was later changed to October 2. At the hearing,
Turner and Garrett testified. Officer Matthew Peach testified
as well. Turner testified that she had reviewed Officer
Peach's incident report prior to trial and saw that
Garrett had told him that a young black male with light skin
and dreadlocks named Brandon had been at her house with
Fletcher earlier on the evening of the robbery. Turner stated
that this description matched a victim's description of
one of the two robbers. Turner testified that, although she
had spoken with Garrett at one of Fletcher's court
appearances, she did not think calling Garrett to testify at
trial was a good idea because her testimony could have hurt
Fletcher's case. Turner pointed out that the only victim
who was permitted to testify and could identify Fletcher was
Wilson, who was a convicted drug dealer. The other victim was
not permitted to testify because she had tested positive for
cocaine. Turner testified that not calling Garrett was trial
strategy because the State could have "impeached"
Garrett with what she had initially told investigators.
Turner
testified that she did not interview Overton because she
could not locate her. Turner stated that no one had an
address or a phone number for Overton. Turner said that she,
her investigator, and the prosecutor had tried to find
Overton without success. When Fletcher asserted that Overton
had been sent back to prison, Turner testified that she was
unaware of that. Turner later testified that, even if she had
found Overton, Overton could have potentially identified
Fletcher as one of the robbers.
Garrett
testified that Fletcher was at home in bed with her when
police came to search her house and that Fletcher had not
left the house that night. She denied telling Officer Peach
that Fletcher had a friend named Brandon who had visited
before the robbery and denied giving a description of that
friend. She ...