David Anderson v. State of Arkansas

Annotate this Case
cr04-621

ARKANSAS SUPREME COURT

No. CR 04-621

NOT DESIGNATED FOR PUBLICATION

DAVID ANDERSON

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered January 26. 2006

APPEAL FROM GREENE COUNTY CIRCUIT COURT, CR 1998-210, HON. CHARLES DAVID BURNETT, JUDGE

AFFIRMED

PER CURIAM

David Anderson was found guilty of first-degree murder and sentenced to 432 months' imprisonment. The court of appeals reversed the judgment and remanded for a new trial. Anderson v. State, 71 Ark. App. 200, 33 S.W.3d 173 (2000). On remand, a jury once again found Anderson guilty of first-degree murder, but sentenced him to life imprisonment. This court affirmed. Anderson v. State, 354 Ark. 102, 118 S.W.3d 574 (2003) ("Anderson II"). Anderson then filed a timely petition for postconviction relief under Ark. R. Crim. P. 37.1, which was denied without a hearing. Anderson now brings this appeal of that order.

Appellant Anderson's sole point on appeal is that the trial court erred in not granting relief. Within that point, appellant argues that trial counsel were ineffective as the result of a conflict arising from a lawsuit appellant had filed against the first attorney appointed as counsel over his representation of appellant at trial. Later, another attorney was appointed to represent appellant, as well. Appellant has not clearly set out within his brief what issues he perceives as subpoints. His allegations are neither well-organized nor clearly delineated as supporting separate issues, but we will address them to the extent that we can follow his arguments.

Appellant must present coherent issues in order for this court to determine them. This court does not research or develop arguments for appellants. Hester v. State, ___ Ark. ___, ___ S.W.3d ___ (May 19, 2005). As a part of his argument, appellant alleges that trial counsel had a "direct conflict," by which he appears to mean that he believes he has demonstrated an actual conflict of interest, that the trial court failed to investigate that conflict and issued the order denying counsel's motion to withdraw based upon erroneous information about appellant previously filing a lawsuit against another attorney. Appellant also includes in his argument allegations concerning his attorneys' actions on change of venue and in presenting appellant's testimony at trial as regards his felony convictions. Appellant complains of counsel's failure to call certain witnesses regarding the victim's statements threatening appellant, and of counsel's failure to provide a portion of the transcript to appellant during the pendency of the appeal. It is not clear whether appellant presents these last allegations as evidence of the alleged conflict or as independent allegations of ineffective assistance. Appellant also includes allegations concerning the trial court's failure to make a ruling, without objection by defense counsel, on questions during appellant's testimony at trial attempting to illicit information about appellant's prior felonies.

Appellant did not demonstrate that counsel had an actual conflict of interest. Appellant cites to Townsend v. State, 350 Ark. 129, 85 S.W.3d 526 (2002) as controlling. The principles set out in Townsend are indeed controlling, as Townsend requires that prejudice is only presumed when a defendant demonstrates that counsel actively represents conflicting interests. In Townsend, as in the present case, prejudice is not presumed simply because the defendant had filed a lawsuit against his attorney.

In an appeal from a court's denial of a petition pursuant to Ark. R. Crim. P. 37.1, the 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). Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003). Under the criteria for assessing the effectiveness of counsel as set out in Strickland, when a convicted defendant complains of ineffective assistance of counsel, he must show first that counsel's performance was deficient through a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Additionally, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Andrews v. State, 344 Ark. 606, 42 S.W.3d 484 (2001) (per curiam).

Townsend held that, unlike those cases involving joint representation of multiple codefendants, automatic reversal did not apply in situations, such as this one, where the conflict is of the defendant's own making, and the nature of the conflict is not inherently suspect. See Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003); see also Jones v. State, 355 Ark. 316, 136 S.W.3d 774 (2003). The Strickland analysis applies, and the defendant must meet the heavy burden of proof associated with it.

When assessing a claim of ineffective assistance of counsel, 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). To rebut this presumption, the petitioner must show that there is a reasonable probability that the decision reached would have been different absent the errors. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). The burden is on the petitioner to provide facts to support his claims of prejudice. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001) (per curiam). Allegations without factual substantiation are insufficient to overcome the presumption that counsel is effective. Id. at 413, 39 S.W.3d at 795. Conclusory statements cannot be the basis of postconviction relief. Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003).

Here, the trial court found appellant had failed to present evidence to overcome his burden of proof. We do not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous or clearly against the preponderance of the evidence. Greene, 356 Ark. at 64, 146 S.W.3d 876. 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 committed. Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002).

The trial court's findings were not clearly erroneous, and, in fact, we must agree with the trial court that appellant failed to meet the burden to overcome the presumption of competence and show prejudice. The allegations in the petition are conclusory and do not provide sufficient factual support to show an actual conflict or a reasonable probability that the decision reached would have been different if the alleged errors had not been committed. None of appellant's allegations of error by counsel, including the failure to request a change of venue and the failure to call witnesses, provides a basis to find an actual conflict. At best, those allegations show that counsel and appellant disagreed on trial strategy. Counsel is not required to substitute the judgment of the accused for his or her own professional judgment. See Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995). Our review of the record does not support appellant's claim that counsel were openly hostile, or otherwise acted unprofessionally. Nor did the petition present a sufficient factual basis to support a claim of prejudice. As we noted in our opinion on appellant's direct appeal of his conviction, evidence of appellant's guilt was overwhelming. To the extent that appellant's arguments may have been based upon an assertion that counsel's actions were not evidence of a conflict, but independent acts to show ineffective assistance of counsel, appellant has also failed to demonstrate prejudice.

Appellant's remaining issues assert error based upon actions of the court, rather than trial counsel. A petitioner may qualify for relief under Ark. R. Crim. P. 37.1, regardless of trial counsel's performance, if he demonstrates error so fundamental as to render the judgment of conviction void and subject to collateral attack. Cothren v. State, 344 Ark. 697, 42 S.W.3d 543 (2001). However, because appellant has not demonstrated an actual conflict, under Townsend, the trial court had no obligation to investigate his claims of conflict, and even were the order denying counsel's motion to withdraw based upon incorrect information as appellant asserts, the denial would not have been error. As to appellant's claims concerning the trial court's failure to prevent the prosecution from introducing evidence of some of his prior convictions, that issue was resolved in appellant's direct appeal. Anderson II, 354 Ark. at 106-108, 118 S.W.3d at 577-578. We find no reversible error, and affirm the trial court's denial of postconviction relief.

Affirmed.

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