Danny Lee Hooper v. State of Arkansas
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ARKANSAS SUPREME COURT
No. CR 07816
Opinion Delivered
November 29, 2007
PRO SE MOTION FOR DUPLICATION
OF BRIEF AT PUBLIC EXPENSE
[CIRCUIT COURT OF WASHINGTON
COUNTY, CR 2005761, HON.
WILLIAM A. STOREY, JUDGE]
DANNY LEE HOOPER
Appellant
v.
STATE OF ARKANSAS
Appellee
APPEAL DISMISSED; MOTION
MOOT.
PER CURIAM
In 2005, appellant Danny Lee Hooper was found guilty by a jury of three counts of rape,
kidnapping, robbery, residential burglary, and thirddegree battery and sentenced as a habitual
offender to an aggregate sentence of 1,320 months’ imprisonment. The Arkansas Court of Appeals
affirmed. Hooper v. State, CACR 051381 (Ark. App. Aug. 30, 2006).
Subsequently, appellant timely filed in the trial court a verified pro se petition for relief
pursuant to Ark. R. Crim P. 37.1. The trial court denied the petition after a hearing, and appellant
has lodged an appeal here from the order.
Now before us is appellant’s pro se motion for duplication of his briefinchief at public
expense. We need not consider the motion as it is apparent that appellant could not prevail in this
appeal if it were permitted to go forward. Accordingly, we dismiss the appeal and hold the motion
moot. An appeal from an order that denied a petition for 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).
Evidence adduced at trial showed that appellant broke into the victim’s house, tied her up,
raped her, and hit her. In the Rule 37.1 petition and at the hearing on the petition, appellant raised
the following arguments: (1) that he should have been found guilty of a single count of rape, rather
than three counts; (2) that trial counsel rendered ineffective assistance by failing to move for a
directed verdict after the defense rested; (3) that the sentences appellant received for all counts should
have been imposed concurrently, rather than consecutively; (4) that he was not told by counsel that
he did not have to testify.
In his first argument, appellant raised a direct attack on the judgment, and such claims are not
cognizable in a Rule 37.1 proceeding. Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001)
(citing Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001)). Rule 37.1 is a means to collaterally
attack a conviction and does not provide a method for the review of mere error in the conduct of the
trial or to serve as a substitute for appeal. Id. His argument regarding whether he should have been
convicted for one count or three counts of rape was previously raised in his direct appeal. Rule 37.1
does not provide appellant a means to raise the issue again. Davis, supra.
For his second argument, appellant contended that trial counsel rendered ineffective assistance
by failing to renew the defense’s motion for directed verdict at the end of the trial. This failure, he
maintains, denied him his right to challenge his conviction on the grounds that the evidence was
insufficient to sustain the judgment. In an appeal from a trial court’s denial of a petition under Rule
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
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(2003). Under Strickland, a petitioner must show 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, a 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).
The standard for proving ineffective assistance of counsel places the burden on appellant 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. Conclusory statements cannot be the basis for
postconviction relief. Jackson, supra.
In his direct appeal, the court of appeals refused to consider the issue of whether appellant
should have been found guilty of one count or three counts of rape or address the sufficiency of the
evidence, based on counsel’s failure to renew the motion for directed verdict. However, failure to
renew a motion for directed verdict is not, in itself, sufficient to support a claim of ineffective
assistance. Here, appellant failed to show that an argument based on the sufficiency of the evidence
or attacking his conviction for three counts of rape would have been successful at trial or on appeal.
Without such a showing, appellant could not meet his burden of proving the prejudice component of
Strickland. Nelson, supra. As a result, appellant’s argument was merely conclusory and could not
overcome the presumption that counsel was effective. Jackson, supra; Nelson, supra.
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Next, as to whether his sentences should have been imposed concurrently or consecutively,
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The judgment entered in this matter reflected that the sentence imposed for Count 3 will
run consecutively to the sentences imposed in Counts 1 and 2. The sentences imposed in Counts
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that decision was solely within the province of the trial judge. Smith v. State, 352 Ark. 92, 98 S.W.3d
433 (2003). So long as appellant’s sentences were not excessive, the issue of whether his sentences
should have run concurrently or consecutively should have been raised at trial or on appeal and does
not present the proper basis for a Rule 37.1 claim. Camargo, supra; Davis, supra. To the degree
that the issue could be raised as a claim that counsel was ineffective for failure to obtain concurrent
sentences, appellant failed to show how counsel could have achieved that result. Jackson, supra;
Nelson, supra.
As to his fourth claim, in the Rule 37.1 hearing, appellant maintained that counsel failed to
advise him that he did not have to testify at trial. However, counsel testified that he discussed with
appellant his right not to testify, and a strategic decision was made for appellant to take the stand.
Matters of trial strategy and tactics fall within the realm of counsel’s professional judgment and are
not grounds for a finding of ineffective assistance of counsel. Camargo, supra; Noel v. State, 342
Ark. 35, 26 S.W.3d 123 (2000).
Conflicts in the testimony at the hearing were for the trial judge to resolve. The judge was
not required to believe the testimony of any witness, especially that of the petitioner as he was the
person most interested in the outcome of the proceedings. See Harper v. State, 359 Ark. 142, 194
S.W.3d 730 (2004). Here, the trial court found the testimony of counsel to be more believable and
that appellant had been advised of his right not to testify.
Appeal dismissed; motion moot.
4, 5 and 6 will run concurrently as to each other but will run consecutively to the sentences for
Counts 1, 2 and 3.
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