Billie Jo Dodson v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

DECEMBER 6, 2001

BILLIE JO DODSON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 00-717

APPEAL FROM THE CIRCUIT COURT OF FAULKNER COUNTY, CR 96-791, HONORABLE KAREN BAKER, JUDGE

AFFIRMED

Appellant was convicted of permitting abuse of a child and being an accomplice to second-degree murder in connection with the death of her eighteen-month old son in 1995. The circuit court sentenced her to a total of twenty years' imprisonment. The Arkansas Court of Appeals affirmed in an unpublished opinion. Dodson v. State, CACR 97-1487 (Ark. App. Jan. 6, 1999). Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. After conducting a hearing on the petition, the trial court denied appellant any postconviction relief. In this appeal, appellant submits that the trial court erred in doing so. 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 mustshow that the deficient performance prejudiced the defense. This requires 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.

Strickland, 466 U.S. at 687. Thus, a defendant must show first, 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 the denial of relief under Rule 37, this court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, the defendant 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 merely by showing that an error was made by counsel or by revealing that a failure to object prevented an issue from being addressed on appeal. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). In making a determination on a claim of ineffectiveness, we 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. For the reasons below, we conclude that the circuit court did not clearly err in denying appellant's petition.

Double Jeopardy

For her first point on appeal, appellant contends that the circuit court erred in denying relief on her claim that her trial counsel was ineffective in failing to object on double jeopardy groundsto her conviction and sentencing on both permitting abuse of a child and being an accomplice to second-degree murder. In Rowbottom v. State, 341 Ark. 33, 37, 13 S.W.3d 904, 907 (2000), we held that a double-jeopardy claim can be raised for the first time in a Rule 37 petition because it is an error so fundamental that it renders the judgment of conviction void. The Double Jeopardy Clauses of the United States and Arkansas Constitutions protect criminal defendants from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Cothern v. State, 344 Ark. 697, 704-05, 42 S.W.3d 543, 548 (2001). As in Cothern, the third protection is at issue here. Appellant claims that she has been punished twice for the same offense because, she argues, permitting abuse of a child is a lesser included offense of being an accomplice to second-degree murder.

From the abstract presented, however, we are unable to review appellant's allegation of error. Arkansas Supreme Court Rule 4-2(a)(6) requires an appellant to include an abstract of the material parts of the record that are necessary to an understanding of the questions presented for decision.1 With the exception of materials included in the addendum, the record on appeal is confined to that which is abstracted. Huddleston v. State, 339 Ark. 266, 273, 5 S.W.3d 46, 50-51 (1999).

Appellant was charged with permitting abuse of a child and being an accomplice to first-degree murder, and she has abstracted the felony information and amended information filed against her. As to the charge of being an accomplice to first-degree murder, the jury found appellant guilty of the lesser offense of being an accomplice to second-degree murder. Appellant, however, hasfailed to include an abstract detailing the elements of the second-degree murder instruction given at trial. Absent this material information, we are unable to review appellant's double jeopardy claim under the "same elements" test established by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299 (1932). See Cothern, 344 Ark. at 705-06, 42 S.W.3d at 548-49.

The same-elements test, commonly referred to as the "Blockburger" test, is as follows:

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not . . . . [A] single act may be an offense against two statutes, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

Blockburger, 284 U.S. at 304. The Blockburger test has been applied by this court, Craig v. State, 14 Ark. 585, 863 S.W.2d 825 (1993), and the Arkansas General Assembly has codified this constitutional protection at Ark. Code Ann. § 5-1-110 (Repl. 1997). As appellant failed to abstract a material part of the record necessary to the resolution of her claim, the circuit court's denial of relief on the claim is affirmed.

Speedy Trial Appellant next contends that the circuit court erred in denying relief on her claim that her trial counsel was ineffective in failing to object that the charge of permitting abuse of a child violated her right to a speedy trial because it was not filed within twelve months of her arrest. She further contends that the continuances granted her prior to the filing of the permitting abuse of a child charge, and charged to her as excludable under Ark. R. Crim. P. 28.3, applied only to her being an accomplice to first-degree murder charge and not her permitting abuse of a child charge.

The facts of appellant's case are directly on point with the facts in Johnson v. State,337 Ark. 477, 485, 989 S.W.2d 525, 529 (1999), where we concluded that such an interpretation of the speedy-trial requirement is inconsistent with the language of the rule itself, Ark. R. Crim. P. 28.2. Id. We stated:

Rule 28.2 contemplates that the clock for speedy-trial purposes begins to run from the date of the arrest for all charges stemming from the same criminal episode, irrespective of when any charge is filed. The offenses here arose from the same criminal episode. It logically follows that any excludable periods under Ark. R. Crim. P. 28.3 must be figured into the speedy-trial calculation and applied to all charges stemming from the same criminal episode for which the original arrest was made. Otherwise, the prosecutor would be forced to calculate a different speedy-trial period for each charge filed and try the most recently filed charge first, thereby producing an illogical result.

Id. at 486, 989 S.W.2d at 529.

The circuit court correctly concluded that Johnson was controlling as to appellant's claim of ineffective assistance. The circuit court was also correct in concluding that appellant's attorney cannot be ineffective in failing to make an argument without merit. Sanford v. State, 342 Ark. 22, 28-29, 25 S.W.3d 414, 418 (2000). The denial of relief on this claim is affirmed.

Prosecutorial Misconduct

For her final point on appeal, appellant asserts that the circuit court erred in denying relief on her claim of prosecutorial misconduct. Appellant contends that the prosecutor intimidated a potential defense witness with the threat of prosecution, and as a result, the witness did not testify on her behalf and give favorable testimony concerning the abuse of her child. At the Rule 37 hearing, Appellant's current counsel stated that the issue had been raised at trial by appellant's trial counsel. Rule 37, however, does not permit a petitioner to raise questions that might have been raised at the trial or on the record on direct appeal, unlessthey are so fundamental as to render the judgment void and open to collateral attack. Davis v. State, 345 Ark. 161, 169, 44 S.W.3d 726, 730 (2001). If appellant wanted to raise her current claim of prosecutorial misconduct, she should have done so on direct appeal. Accordingly, the circuit court's denial of relief on this claim is affirmed.

Affirmed.

Imber, J., not participating.

1 Cases in which the record is lodged in the Supreme Court or Court of Appeals on or after September 1, 2001, will no longer be affirmed because of the insufficiency of the abstract without the appellant first having the opportunity to cure the deficiencies. See In re: Modification of the Abstracting System -- Amendments to Supreme Court Rules 2-3, 4-2, 4-3, 4-4, 345 Ark. Appx. , __ S.W.3d __ (2001) (per curiam).