Samuel J. West, Jr. v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR03-987

NOT DESIGNATED FOR PUBLICATION

SAMUEL J. WEST, JR.

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered March 10, 2005

APPEAL FROM THE CIRCUIT COURT OF SALINE COUNTY, NO. CR 99-565, HONORABLE GRISHAM A. PHILLIPS, JR., JUDGE

AFFIRMED

PER CURIAM

Samuel J. West, Jr. was convicted in Saline County Circuit Court of aggravated robbery and theft of property. He was sentenced to fifty years' imprisonment in the Arkansas Department of Correction. His conviction was affirmed in West v. State, CA CR 00-987, slip op. at 2001 WL 518410 (Ark. App. May 16, 2001) ("West I"). West subsequently filed a pro se petition for postconviction relief pursuant to Ark. R. Cr. P. 37.1. The circuit court held no hearing, but issued an order denying relief. We affirm.

At trial, West was identified as having approached a man at a car wash, demanding his money. The victim testified that the assailant kept his right hand under his coat as he took the victim's wallet, then some change from the victim's pocket. After letting the man begin to leave, the robber called for him to return and get down on his knees. When the victim turned, he saw the robber holding a gun and loading a clip into it.

Appellant raises only one point of error on appeal of the order denying postconviction relief.

He contends the trial court erred in failing to find ineffective assistance of trial counsel for counsel's failure to present evidence that "appellant was not armed with a deadly weapon" and for failing to fully advise West of the consequences of not testifying. In his argument, appellant alleges the trial court erred in not conducting a hearing on the issue. The trial court has discretion pursuant to Ark.R. Cr. P. 37.3(a) to decide whether the files or records are sufficient to sustain the court's findings without a hearing. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003). We cannot say the trial court abused that discretion.

This court has consistently held that an evidentiary hearing should be held in a postconviction proceeding unless the files and the records of the case conclusively show that the prisoner is entitled to no relief. Id. at 25, 98 S.W.3d at 41. In this case, the trial court did not err in finding a hearing was not necessary. As we set out below, there was ample evidence in the record and pleadings to show conclusively that appellant was not entitled to relief.

To prevail on a claim of ineffective assistance of counsel, the claimant must show that counsel's representation fell below an objective standard of reasonableness and, but for counsel's errors, the result of the trial would have been different. Green v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000).

At trial, counsel did present arguments challenging the sufficiency of the evidence and requesting jury instructions for lesser included offenses on the basis that aggravated robbery requires a showing that the perpetrator employs or threatens to immediately employ force upon another while armed with a deadly weapon or while representing by word or conduct that he is so armed. Ark. Code Ann. § 5-12-103(a)(1) (Repl. 1997). Counsel asserted the display of force only occurred after the robbery. While not ultimately persuasive, trial counsel's argument that the evidence presented by the state did not support a finding that a deadly weapon was employed was legitimate and well reasoned. In his postconviction relief petition and the appellant's brief, appellant does not contend any other evidence exists to support his claim that the assailant did not have a gun during the robbery, aside from what appellant contends would have been his own testimony to that effect. While he faults trial counsel for failing to present any evidence during the trial, he never alleges any exists, apart from that testimony. Counsel committed no error by failing to present evidence that did not exist.

Appellant further asserts trial counsel committed error for failing to advise him that if he did not testify, the court would not give the jury instructions for the lesser included offense of robbery. This court has held that an attorney's advice to a defendant on whether or not to testify and the defendant's decision to take or not take the stand are not grounds for postconviction relief predicated on ineffective assistance of counsel. Dansby v. State, 347 Ark. 674, 66 S.W.3d 585 (2002). The decision to testify is purely one of strategy. Id. at 679, 66 S.W.3d at 588. Trial counsel may very well not have been aware his client was willing to confess in court that he had committed the crime. His recommendation to his client not to testify because of his prior convictions was certainly a sound one. Even had counsel been aware of his client's guilt, we think it quite reasonable to assume his client would prefer not to destroy any chance to prevail on the argument that the state had not met its burden of proof, by providing a confession in open court. To choose to make that strategic decision for his client was certainly within the range of reasonable professional judgments. Until West I, the issue of sufficiency of the evidence was an unsettled question of law as it applied to the unique facts of this case. His attorney was not deficient just because he lost at trial and on appeal on an unsettled question of law. Id. at 681, 66 S.W.3d at 590.

Since trial counsel committed no error based upon appellant's allegations, we find that the trial court did not abuse its discretion by determining a hearing was not warranted. Accordingly, we affirm the decision not to grant postconviction relief.

Affirmed.

Glaze, J., not participating.