Leonard Dickerson v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

SEPTEMBER 21, 2000

LEONARD DICKERSON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 98-300

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, (NO. CR 89-1660), HONORABLE MORRIS W. THOMPSON, JUDGE

AFFIRMED

The appellant, Leonard Dickerson, was convicted by a jury of rape after evidence introduced during his trial indicated that he grabbed the victim as she was walking home with her friend, Joe Juniel, and through threats with an apparently hidden gun, forced intercourse between Juniel and the victim, and then himself and the victim. He was sentenced to forty years in the Arkansas Department of Correction. We affirmed the conviction and sentence in Dickerson v. State, CR 90-163 (January 28, 1991). Dickerson now appeals from an order denying his request for postconviction relief. We find no error and affirm.

Dickerson was convicted in 1990. At that time, Arkansas Criminal Procedure Rule 37 had been abolished and replaced with Rule 36.4. Under Rule 36.4, a criminal defendant who wished to raise a claim of ineffective assistance of counsel had to do so in a motion for a new trial within thirty days of the date of the judgment. Dickerson did not file such a motion, but sought habeas corpus relief pursuant to 28 U.S.C. § 2254 in federal court. The federal district court issued a conditional writ of habeas corpus that provided that a writ would issue within 120 days unless Dickerson waspermitted to proceed under Rule 36.4 in state court.

Pursuant to the order of the federal court, Dickerson filed a motion for a new trial in which he alleged that he did not receive effective assistance of counsel as guaranteed by the Sixth Amendment. Specifically, he alleged that his trial counsel was ineffective because he abandoned a meritorious defense of consent in favor of an ultimately unsuccessful alibi defense, because he advised Dickerson to not testify in his own behalf, because he advised Dickerson to not waive his right to a jury trial and submit to a bench trial, and because he failed to move for a mistrial when a witness for the State included a gang reference in his testimony.

The circuit court initially held a hearing and denied relief in an order that did not contain written findings of fact and conclusions of law. Dickerson appealed, and we reversed and remanded the case for written findings in Dickerson v. State, CR 98-300, (September 30, 1999). In doing so, however, we concluded that Dickerson was not entitled to relief on his claims that his counsel was ineffective for putting forth an alibi defense and for advising Dickerson against testifying in his own behalf. Those were matters of trial strategy that were outside the purview of Rule 37. See e.g. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992).

On remand, the circuit court entered written findings of fact and conclusions of law that denied all of the claims in Dickerson's motion, including the matters we resolved in the direct appeal. Dickerson also now argues that he is entitled to relief on all of the claims in his motion. He does not, however, discuss our conclusions in the first appeal. The doctrine of law of the case prevents us from addressing the merits of two of Dickerson's arguments on appeal.

The law-of-the-case doctrine ordinarily arises in the case of a second appeal and requires that matters decided in the first appeal be considered concluded. Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999). The doctrine is not inflexible and does not absolutely preclude correction oferror, but it prevents an issue raised in a prior appeal from being raised in a subsequent appeal "unless the evidence materially varies between the two appeals." Id. at 110, 987 S.W.2d at 683 (quoting Kemp v. State, 335 Ark. 139, 142, 983 S.W.2d 383, 385 (1998) (quoting Fairchild v. Norris, 317 Ark. 166, 170, 876 S.W.2d 588, 590, cert. denied, 513 U.S. 974 (1994)). The doctrine precludes the trial court on remand from considering and deciding questions that were explicitly or implicitly determined on appeal. Id.; Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997).

In this case, the ineffective assistance of counsel claims involving counsel's defense strategy and his decision to advise against Dickerson's testifying in his own behalf were settled in the first appeal. There was no new evidence introduced after the case was remanded, and Dickerson does not allege that our ruling was in error. Consequently, we need not address those issues in this second appeal.

Dickerson next argues that his counsel was ineffective for failing to honor his request to waive a jury and be tried to the court. According to Dickerson, the prosecutor offered to drop the habitual offender allegation in the information if Dickerson would agree to a bench trial. Dickerson claims that the maximum sentence he could expect to receive from such an arrangement was twenty-five years. He asserts that he expressed a desire for a bench trial, but that he was "overruled by his attorney," because counsel believed he could obtain a lighter sentence from a jury. Dickerson alleges that his attorney, in effect, usurped his constitutional right to waive a jury trial, and in the process, Dickerson received a greater sentence.

In order to show that his counsel was ineffective, Dickerson must establish that his representation fell below an objectively reasonable standard and that there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668 (1984); Wainwright v. State, supra. Thisreasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985).

During the postconviction hearing, there was conflicting testimony about whether an offer of a bench trial was actually made. Dickerson testified that his attorney communicated the offer to him, but advised against accepting it. For his part, Dickerson's attorney did not recall that an offer was made, but indicated that he would advise against it. In its order, the circuit court noted that Dickerson's claims about the existence of the offer of a bench trial were uncorroborated. The court went on to conclude, however, that even if counsel performed deficiently by advising against accepting such an offer, Dickerson could not demonstrate that there is a reasonable probability that the outcome would have been different.

The circuit court's ruling is not clearly erroneous. Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998). There is no evidence, other than Dickerson's own testimony, to show that the State offered to drop the habitual offender allegation in exchange for his acquiescence to a bench trial. There is also no other evidence to indicate that even if such an offer was made, counsel failed to communicate it or otherwise interfered with Dickerson's decision. The trial court was not required to accept Dickerson's testimony. Riggins v. State, 329 Ark. 171, 946 S.W.2d 691 (1997). Consequently, we must affirm.

Dickerson next contends that the circuit court erred when it did not grant relief on his claim that his counsel was ineffective for failing to move for a mistrial when a State's witness made a reference to gang membership during his testimony. During the defense's cross examination of Joe Juniel, defense counsel asked if the victim "usually hangs around with Anthony Shelton." The witness replied, "Yeah, ...What it is, see, a gang had started, you know...." Counsel stopped questioning the witness and noted to the trial court that Juniel had difficulty ensuring that hisanswers were responsive to the questions on cross-examination. Counsel did not, however, lodge an objection or otherwise take issue with Juniel's comments.

The circuit court denied relief on this claim because there was nothing in the context of Juniel's comments that suggested he was referring to Dickerson's membership in a gang. We agree. Juniel appeared to raise the issue of gang membership in order to explain the victim's association with Anthony Shelton, not Dickerson. Regardless of the exact interpretation of the context, however, the ambiguity of Juniel's comments hardly warrants the drastic remedy of a mistrial. See Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999). Consequently, counsel did not perform deficiently when he did not make that request.

Affirmed.