Miller v. State
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Cite as 2011 Ark. 114
SUPREME COURT OF ARKANSAS
No.
CR 08-1357
Opinion Delivered
RANDY MILLER
Appellant
March 17, 2011
APPEAL FROM UNION COUNTY
CIRCUIT COURT, CR 2005-56,
HON. CAROL ANTHONY, JUDGE
v.
STATE OF ARKANSAS
Appellee
AFFIRMED.
PER CURIAM
Appellant was convicted by a jury of two counts of delivery of cocaine, for which he
was sentenced to eighty years’ incarceration in the Arkansas Department of Correction. The
Arkansas Court of Appeals affirmed, holding that claims regarding the sufficiency of the
evidence were not preserved for appellate review because trial counsel had failed to renew his
motion for directed verdict at the close of all of the evidence. Miller v. State, CACR 06-888
(Ark. Ct. App. May 9, 2007) (unpublished). Appellant subsequently filed a petition for
postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010). The trial
court held a hearing on appellant’s petition pursuant to Arkansas Rule of Criminal Procedure 37.3(c),
following which the court entered an order denying relief.
Now before us is appellant’s appeal from the trial court’s denial of postconviction relief. On
appeal, appellant asserts the same two claims that he raised in his original Rule 37.1 petition to the
trial court—that his due process rights were violated because he was entitled to an appeal “on
the merits,” which he did not receive due to trial counsel’s errors, and that trial counsel was
Cite as 2011 Ark. 114
ineffective for failing to preserve the issue of sufficiency of the evidence. We find no error,
and we affirm.
This court does not reverse a denial of postconviction relief unless the trial court's
findings are clearly erroneous. Ewells v. State, 2010 Ark. 407 (per curiam) (citing Jamett v.
State, 2010 Ark. 28, ___ S.W.3d ___ (per curiam)). 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.
Watkins v. State, 2010 Ark. 156 (per curiam); Polivka v. State, 2010 Ark. 152, ___ S.W.3d
___.
In an appeal from a trial court’s denial of postconviction relief on a claim of ineffective
assistance of counsel, the sole question presented is whether, based on the totality of the
evidence under the standard set forth by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984), the trial court clearly erred in holding that counsel’s
performance was not ineffective. Ewells, 2010 Ark. 407, at 2. Under the Strickland test, a
claimant must first demonstrate that counsel’s performance fell below an objective standard
of reasonableness. Smith v. State, 2010 Ark. 137, at 2, ___ S.W.3d ___, ___. Secondly, under
Strickland, the claimant must demonstrate that counsel’s deficient performance prejudiced his
defense to such an extent that the petitioner was deprived of a fair trial. McCraney v. State,
2010 Ark. 96, ___ S.W.3d ___ (per curiam). Such a showing requires that the petitioner
demonstrate a reasonable probability that the fact-finder’s decision would have been different
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absent counsel’s errors. Ewells, 2010 Ark. 407, at 3. A reasonable probability is a probability
sufficient to undermine confidence in the outcome of the trial. Id.
Appellant’s arguments are essentially two sides of the same coin. His first claim is that
his due process rights were violated because he was entitled to an appeal “on the merits,”
which he did not receive due to trial counsel’s failure to preserve the issue of “sufficiency of
the evidence.” His second argument is that trial counsel was ineffective for failing to preserve
the same issue, and appellant points to his inability to receive an appeal “on the merits” as
proof of prejudice. Neither argument is persuasive.
With respect to appellant’s due process claim, we have consistently held that such
claims are not cognizable in a Rule 37.1 petition. See, e.g., Wallace v. State, 2010 Ark. 485
(per curiam); Mills v. State, 2010 Ark. 390 (per curiam); Bell v. State, 2010 Ark. 65, ___
S.W.3d ____ (per curiam). Moreover, we note that Arkansas Rule of Criminal Procedure
33.1(c) states that the “failure of a defendant to challenge the sufficiency of the evidence at
the times and in the manner required . . . will constitute a waiver of any question pertaining
to the sufficiency of the evidence.” Application of the rules of criminal procedure to
appellant’s case can hardly be construed as depriving him of his due process rights. Thus, we
cannot say that the trial court was clearly erroneous in denying relief on this point.
Regarding appellant’s second point on appeal, he argues that the trial court incorrectly
denied relief based on ineffective assistance of counsel. At trial, counsel made a proper motion
for directed verdict at the close of the state’s case but failed to properly renew that motion at
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the close of all evidence. In such situations, when dealing with a postconviction motion based
on ineffective assistance of counsel, we have previously explained that the question for the
trial court is whether anything occurred between when the first motion was denied and the
conclusion of all evidence that would have caused the court to grant the motion had it been
properly renewed. See Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). Once the trial
court determines that no such event occurred, and thus no prejudice resulted from the failure
to renew the motion, an appeal of that decision requires this court to review whether the
evidence was sufficient for presentation to the jury. See id.
The trial court found that, even if trial counsel had preserved the issue, “the evidence
of [appellant’s] guilt was overwhelming.” In support of this finding, the trial court pointed to
the testimony of an informant regarding the drug transactions, the testimony of a narcotics
officer who listened to the audio transmissions during the transaction and testified as to what
occurred and how the evidence was secured, and a videotape that corroborated the testimony
of both men. The trial court therefore held that there were ample factual issues to submit to
the jury.
The record on appeal comports with the trial court’s statement of the evidence against
appellant. During the trial, the informant narrated the events on the videotape as it was being
played in open court, and he testified that he purchased the cocaine from appellant. He also
wore an audio-video recorder to record the transactions. The narcotics officer testified that
the informant was supposed to buy three grams in the first buy and roughly seven grams in
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the second buy, and he returned to the officer with 4.8 and five grams, respectively. The
videotape apparently corroborated much of the testimony of both men, though it is not clear
that appellant was shown actually receiving money on the tape.1 The only evidence presented
by appellant in his defense was cross-examination of the narcotics officer in an effort to
discount some of the officer’s earlier testimony.
In sum, the totality of the evidence demonstrates that appellant was not prejudiced by
trial counsel’s failure to timely renew the directed-verdict motion. Had the motion been
renewed, the trial court would have denied it, and, based on our review of the evidence, we
conclude that there was in fact sufficient evidence for the case to proceed to the jury inasmuch
as there was unequivocal testimony identifying the accused as the offender. See Rawls v. State,
327 Ark. 34, 937 S.W.2d 637 (1997). This is because the testimony of one eyewitness is
sufficient to sustain a conviction. See id.
Based on the foregoing, appellant failed to demonstrate that he was prejudiced by trial
counsel’s failure to renew the directed-verdict motion at the close of all evidence. While
appellant was unable to directly appeal the issue of sufficiency of the evidence, there was
1
Appellant’s entire argument regarding prejudice is based on what the videotape did or did
not show and how the court of appeals might have viewed the evidence. In effect, he is arguing that
the state presented insufficient evidence to prove the crimes charged. Such arguments are challenges
to the weight and sufficiency of the evidence, which is a direct attack on the conviction itself and
may not be raised in a petition for postconviction relief. See Robinson v. State, 295 Ark. 693, 751
S.W.2d 335 (1988) (per curiam). The relevant inquiry here is not the weight or sufficiency of the
evidence for conviction, but whether there was adequate evidence to support the trial court’s
determination that it would have denied the motion for directed verdict had the motion been
properly renewed. See Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997).
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substantial evidence to support the verdict. Thus, appellant failed to satisfy the second prong
of Strickland, and trial counsel was accordingly not ineffective. The trial court’s denial of relief
was therefore not clearly erroneous, and we affirm.
Affirmed.
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