John D. Martin v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-946

NOT DESIGNATED FOR PUBLICATION

JOHN D. MARTIN

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered November 10, 2005

APPEAL FROM THE CIRCUIT COURT OF POPE COUNTY, CR 2001-157, HON. DENNIS CHARLES SUTTERFIELD, JUDGE

AFFIRMED

PER CURIAM

John D. Martin was found guilty at a jury trial of carnal abuse, third degree, violation of a minor in the first degree, and rape, and sentenced to 12 months' imprisonment on the carnal abuse charge, 36 months' imprisonment on the violation of a minor charge, and 168 months' imprisonment on the rape charge. This court affirmed the judgment. Martin v. State, 354 Ark. 289, 119 S.W.3d 504 (2003). Martin filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1, which was denied without a hearing. Martin now brings this appeal of the denial of postconviction relief by the trial court.

Appellant Martin raises three points on appeal: (1) that the trial court erred in failing to find ineffective assistance of counsel; (2) that the trial court erred in denying postconviction relief without making written findings that appellant was not entitled to relief; (3) that the trial court erred in denying appellant's petition without providing him an opportunity to reply to the State's answer and before his motion to amend. In his first point on appeal, appellant alleges ineffective assistance based upon (1) trial counsel's failure to introduce into evidence relevant portions of the victim's taped interview or the transcript of that interview; (2) trial counsel's failure to object to amendment of the information; (3) trial counsel's failure to move to quash the information based upon alleged prosecutorial misconduct; (4) trial counsel's failure to object to the third count of the information or indictment; (5) trial counsel's failure to file a motion for a bill of particulars compelling the State to specify the date of the alleged rape.

The State notes that appellant's abstract is deficient because it does not summarize all of the evidence presented at trial as required for review of a claim of ineffective assistance of counsel, and we would agree. While the State did not file a motion to require appellant to supplement his brief, this court may still require rebriefing pursuant to Ark. Sup. Ct. R. 4-2(b)(3).1 Because it is clear from the record before us that appellant could not prevail, however, we do not provide an opportunity for him to supplement the abstract and we affirm the denial of postconviction relief. This court has consistently held that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999) (per curiam); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996) (per curiam); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994) (per curiam); Reed v. State, 317 Ark. 286,878 S.W.2d 376 (1994) (per curiam).

We address appellant's third point first, because, as the State points out in its brief, only one sub-point under appellant's claim of ineffective assistance was included in the original petition. Any arguments concerning the information and charges were not raised until appellant filed a motion to amend, which was denied. This court has repeatedly stated that we will not address arguments, even constitutional arguments, raised for the first time on appeal. Dowty v. State, ___ Ark. ___, ___ S.W.3d ___ (June 23, 2005); see also, Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004).

Appellant did not file his motion to amend until after the court had denied his petition for postconviction relief. Rule 37.2(e) of the Arkansas Rules of Criminal Procedure provides that a petition may be amended with leave of the court before the court acts upon the petition. The State additionally cites Ford v. State, 278 Ark. 106, 644 S.W.2d 252 (1982) (per curiam) in support of holding that the amendment was untimely. Appellant argues that an exception to the general rule should apply here, because he did not receive notice of the decision until after the denial of postconviction relief. We do not find that argument persuasive.

Even if appellant's amendment had been filed before the trial court acted on his petition, the trial court was not required to provide appellant leave to amend under these circumstances, and certainly was not obliged to permit appellant to raise additional arguments outside of those raised in his original petition. The rule clearly provides that permission to amend is discretionary. Further, Ark. R. Crim. P. 37.2(b) requires all grounds for relief be raised in the original petition. The trial court clearly was not required to allow a petitioner to raise additional grounds in an amendment, simply because the petitioner had not received notice of the order denying his petition.

Appellant also argues that the trial court should not have ruled on his petition without permitting him a chance to respond to the State's brief by filing a reply brief. He cites no authority for this position, and, unlike Ark. Sup. Ct. R. 4-3(d), which allows a reply brief to be filed in this court on appeal within 15 days of the date the appellee's brief is filed, Ark. R. Crim. P. 37.2 does not include any provision for filing a reply brief. The trial court would not have been required to consider or accept a reply brief.

Because the other issues were not raised in his original petition and were not before the trial court for decision, only appellant's first argument in his first point was preserved for review. We address only that allegation of error, along with his second point, for the trial court did not make written findings as required by Ark. R. Cr. P. 37.3(a). The State urges us to affirm, despite the trial court's failure to comply with the rule.

Arkansas Rule of Criminal Procedure 37.3(a) provides, "If the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court's findings." 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. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). If the trial court fails to make findings as required by Ark. R. Cr. P. 37.3(a), it is reversible error, unless the record before this court conclusively shows that the petition was without merit. Carter v. State, 342 Ark. 535, 538, 29 S.W.3d 716, 718 (2000) (per curiam). Despite appellant's assertion to the contrary, the record does conclusively show that appellant's allegation of ineffective assistance of counsel was clearly without merit.

The criteria for assessing the effectiveness of counsel are set out in Strickland v. Washington,466 U.S. 668 (1984). 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). 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, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., that the decision reached would have been different absent the errors. Id. at 38, 26 S.W.3d at 125. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Greene, 356 Ark. at 64, 146 S.W.3d at 875-876.

In his petition, appellant alleged that trial counsel erred by failing to introduce additional portions of the taped interview of the victim by an investigator from the Arkansas State Police, or the transcript of that interview, for the purpose of impeaching the victim's testimony. Counsel proffered one page of the transcript concerning appellant's knowledge of previous false allegations against appellant by the victim's sister, but did not attempt to introduce the remainder of the transcript or tape. Appellant alleges that counsel should have used the interview transcript to point up inconsistencies between the victim's testimony at trial and her statements in the interview concerning when actual sexual intercourse with appellant, rather than mere touching, began. The allegations in appellant's petition are not sufficient to overcome the heavy burden appellant bears to rebut the presumption that counsel's conduct was reasonable professional assistance.

Appellant asserts that the statements from the interview would have caused the jury to question the victim's credibility. However, those statements in the interview are very qualified, and the victim indicated she was unsure as to the accuracy on that exact date. We cannot say the appellant has shown evidence so strong as to undermine confidence in the outcome of the trial.

Moreover, as we noted in our opinion on appellant's direct appeal, his defense was that he did not commit the crimes and the victim had fabricated the events to have him removed from the home. Exact dates were immaterial, given that defense. Martin v. State, 354 Ark. at 296, 119 S.W.3d at 508. The State argues that the decision on whether or not to seek admission of the interview to attack the victim's credibility was clearly a matter of trial strategy under the facts of this case. That may well be, particularly because the interview contained graphic descriptions that might have been prejudicial to the defense. We do not need to reach that question, however, because appellant has not met his burden to show a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt.

As a final note, appellant had referenced in his reply brief the lack of a certificate of service on appellee's brief. Appellant obviously was not prejudiced, in any case, as he filed a timely reply brief, but we can confirm that evidence of service was provided by the State. The State furnished our clerk with a letter signed by counsel as permitted by Ark. Sup. Ct. R. 4-4(d).

Affirmed.

1 Whether or not the appellee has called attention to deficiencies in the appellant's brief, this court may address the question at any time. If the abstract or addendum is so deficient that we cannot reach the merits of the case, or to do so would cause unjust delay, then this court may notify appellant that he will be afforded an opportunity to file a substituted brief in conformance with Rule 4-2(a)(5) and (8), at his own expense. If, after the opportunity to cure the deficiencies, appellant once again fails to file a complying brief within the prescribed time, the judgment may be affirmed for noncompliance.