Larry Ladwig v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 4, 2001

LARRY LADWIG

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 00-594

AN APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY,

NO. CR-95-658-2-3

HONORABLE FRED D. DAVIS III,

CIRCUIT JUDGE

MOTION TO WITHDRAW GRANTED; JUDGMENT AFFIRMED.

In 1996, Larry Ladwig was found guilty by a jury of murder in the first degree and sentenced to forty years' imprisonment. We affirmed. Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). Ladwig subsequently filed in the trial court a timely petition pursuant to Criminal Procedure Rule 37 seeking to vacate the judgment. The petition was denied, and the record on appeal from the order has been lodged here. The attorney for appellant Ladwig has filed a brief and a motion to be relieved as counsel pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967) and our Rule 4-3(j)(1), stating there is no merit to the appeal. Appellant was informed in accordance with Rule 4-3(j) he was entitled to file within thirty days a pro se brief advancing any points for reversal he desired to raise on appeal. However, appellant failed to timely file his brief. See Ladwig v. State, CR 00-594 (Ark. February 15, 2001). The State declined to file a brief in response to this no merit appeal.

In this case, there were four adverse rulings as a result of the denial of appellant's Rule 37petition. The record indicates that appellant raised numerous claims in his petition but at the hearing only four claims were addressed. Therefore, those four issues have been abstracted and briefed by counsel. Appellant's remaining points in his petition were all denied because there was no evidence provided during the hearing to support those claims.

The first adverse ruling involves appellant's claim that his trial counsel failed to object to the admissibility of highly prejudicial photographs. The record reveals that appellant's trial counsel had negotiated with the prosecution and the medical examiner to preclude all photographs but two autopsy photographs. After reviewing the Rule 37 transcript, there is no indication that appellant introduced the pictures that had been admitted during trial to demonstrate the prejudicial nature of the photographs. In addition, this court has routinely held that Rule 37 is not available as a direct challenge to the admissibility of evidence or to raise questions of trial error. See Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988). Thus, this issue is without merit.

The remaining adverse rulings revolve around appellant's sentence. During the sentencing phase of appellant's trial, the jury deadlocked on a sentence to recommend to the court with eleven jurors voting for forty years and one juror in favor of life in prison. In his petition, appellant argued that his counsel failed to object to the judge using the jury's vote as a basis for an upward departure on the sentencing grid. Appellant also argued that the court had no authority to make an upward departure based on his knowledge of the jury vote and that counsel should have demanded an "Allen Instruction". The first two points raised challenging appellant's sentence did not receive an adverse ruling. In fact, the court reduced the sentence from forty years to the presumptive sentence of thirty years. A petitioner who collaterally attacks his conviction under Rule 37 is required to show that he suffered some actual prejudice arising from a specific error by counsel. Dumond v. Slate, 294 Ark. 379, 743 S.W.2d 779 (1988). Because appellant's sentence was reduced, there is no showingof prejudice with regard to these two arguments. Additionally, appellant's argument that counsel failed to request an "Allen Instruction" is also without merit. The jury was deadlocked between forty years in prison and life. Because appellant's sentence was lowered to thirty years, prejudice cannot be shown.

From a review of the record and brief before this court, we find the appeal to be without merit. Accordingly, counsel's motion to be relieved is granted and the judgment is affirmed.

Motion to withdraw granted; judgment affirmed.