Jewel Johnson v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

NOVEMBER 15, 2001

JEWEL JOHNSON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR00-324

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 95-3285 HONORABLE JOHN B. PLEGGE JUDGE

AFFIRMED

Appellant was convicted of theft of property with a value of more than $200 but less than $2,500. He was sentenced as a habitual offender to a term of 108 months' imprisonment. The Arkansas Court of Appeals affirmed the conviction in an unpublished opinion, Johnson v. State, CA CR 98-35 (Ark. App. Feb. 17, 1999), and subsequently denied rehearing. Appellant filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37, raising three claims of ineffective assistance of counsel. The circuit court denied the petition without a hearing. Appellant filed a timely notice of appeal. We find no error and affirm.

The Supreme Court enunciated the standard for assessing the effectiveness of counsel in Strickland v. Washington, 466 U.S. 668, 687 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687. Thus, a defendant must first show that counsel's performance "fell below an objective standard of reasonableness," id. at 688, and second, that the errors "actually had an adverse effect on the defense." Id. at 693.

In reviewing a denial of relief under Rule 37, we must indulge a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, appellant must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id.

Ineffective assistance of counsel cannot be established by a mere showing of error by counsel or by revealing that counsel's failure to object prevented an issue from being addressed on appeal. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (1997) (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). We must consider the totality of the evidence before the factfinder, and we will not reverse the denial of postconviction relief unless the lower court's findings are clearly against the preponderance of the evidence. Noel, 342 Ark. at 38, 26 S.W.3d at 125.

Appellant's first claim of ineffectiveness is that trial counsel failed to move for a directed verdict on the ground that the State's proof of value was insufficient to support appellant's conviction. Appellant contends that the State failed to prove the value of the gun stolen from thevictim and that trial counsel failed to specifically move for a directed verdict based upon insufficiency of the evidence. The Arkansas Court of Appeals did not consider this claim on direct appeal, because trial counsel failed to preserve the issue for review.

The circuit court noted that the victim testified that three months prior to the offense, he paid $400 for a Ruger P89 .9 mm., the gun stolen by the appellant. Although appellant claims that this testimony is insufficient, we disagree. According to Ayers v. State, 334 Ark. 258, 268, 975 S.W.2d 88, 93-94 (1998):

The preferred method of establishing value is by expert testimony, not by testimony from the owner. Coley v. State, 302 Ark. 526, 790 S.W.2d 899 (1990). Value, however, may be sufficiently established by circumstances that clearly show a value in excess of the statutory requirement. Id. at 529. The purchase price paid by the owner is admissible as a factor for the jury to consider in determining market value, when it is not too remote in time and bears a reasonable relation to present value. Id. Thus, when the circumstances present substantial evidence indicating the value of property, direct proof of value is not required. Stewart v. State, 302 Ark. 35, 786 S.W.2d 827 (1990).

Appellant must show, not only that counsel's performance was deficient, but also that the deficient performance prejudiced the defense. Strickland, supra. The victim's testimony regarding the value of the stolen gun was sufficient to support the jury's verdict. Therefore, appellant was not prejudiced by trial counsel's failure to preserve the issue on appeal, as appellant cannot show that the outcome of the trial would have been different.

Appellant's second claim of ineffective assistance of counsel is that trial counsel failed to "federalize" the motion for mistrial. During closing arguments, the prosecutor stated that she had personal knowledge of appellant's gang affiliation. Trial counsel objected to the prosecutor's comments, then moved for a mistrial. The motion was denied. Trial counsel asked for an admonition, and the judge complied, instructing the jury to disregard the prosecutor's remark. Ondirect appeal, the Arkansas Court of Appeals held that the prosecutor's statement, although improper, did not merit a mistrial, in light of the fact that the victim testified that appellant flashed gang signs and stated that he was "down with the Kings" during the commission of the crime. Johnson, CA CR 98-35, slip op. at 5. In denying appellant's petition, the circuit court concluded that appellant was not prejudiced by the comments because of the trial court's admonishment to the jury.

Petitioner argues that trial counsel failed to raise a federal due process-based objection in order to preserve the issue at the federal habeas level. However, appellant fails to cite any authority supporting his claim that trial counsel's performance constitutes deficient performance or that such a due process claim would have been successful. We have said on numerous occasions that we will not consider the merits of an argument if the appellant fails to cite any convincing legal authority in support of that argument. Womack v. Foster, 340 Ark. 124, 158, 8 S.W.3d 854, 874 (2000).

Appellant's argument that but for trial counsel's failure to "federalize" his mistrial motion, appellant's trial would have been found to be unfair and in violation of due process is simply a conclusory allegation. "Conclusory allegations cannot be a basis for postconviction relief." Sasser v. State, 338 Ark. 375, 395, 993 S.W.2d 901, 912 (1999). Petitions which state only a conclusion are patently deficient in that there can be no showing of actual prejudice to the petitioner without factual support for the allegation made by him. A showing of actual prejudice is necessary to warrant relief under Rule 37. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992); Spivey v. State, 299 Ark. 412, 773 S.W.2d 446 (1989).

Third, appellant claims that trial counsel was ineffective for failing to object at first opportunity to statements regarding appellant's parole eligibility. On direct appeal, the Arkansas Court of Appeals held that appellant waived this claim, because trial counsel did not object to thejury instructions and never sought a correction of the prosecutor's remarks. Johnson, supra. The circuit court denied appellant's claim, because appellant failed to prove he was prejudiced from trial counsel's failure to object.

As noted by the circuit court, appellant cites no authority supporting his claim that the law stated in the jury instructions was incorrect. As stated previously, we will not consider the merits of an argument if the appellant fails to cite any convincing legal authority in support of that argument. Womack, supra. There is no evidence that the jury was incorrectly instructed as to the law regarding appellant's parole eligibility. Therefore, trial counsel's performance was not deficient nor was appellant prejudiced, as the outcome of the trial would not have been different. See Strickland, supra.

Appellant's final claim is that the circuit court erred in denying appellant's petition without an evidentiary hearing. Rule 37.3(a) provides that the trial court need not hold a hearing if "the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief...." See also Carter v. State, 342 Ark. 535, 538, 29 S.W.3d 716, 718 (2000). But in doing so, 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." Id.

The circuit court found that appellant's petition was without merit; therefore, it was denied without a hearing. The circuit court made detailed findings noting those parts of the record upon which it relied when denying appellant's petition. The circuit court satisfied the requirements of Rule 37; therefore, we find no error.

Affirmed.