Albert Allen Dirickson v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

May 17, 2001

ALBERT ALLEN DIRICKSON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 99-795

AN APPEAL FROM THE CIRCUIT COURT OF SEVIER COUNTY,

NO. CR 95-87

HONORABLE CHARLES YEARGAN,

CIRCUIT JUDGE

AFFIRMED

Appellant, Albert Allen Dirickson, was convicted of three counts of attempted capital murder and single counts of attempted rape and residential burglary. He was sentenced to a total of 140 years' imprisonment for the offenses. Naked, intoxicated, and armed with a hunting knife, appellant unlawfully entered the home of Lyndell and Nedra Martin in DeQueen, Arkansas, on September 5, 1995, and stabbed Mrs. Martin and her eleven-year-old and sixteen-year-old sons. On appeal, appellant contended that the trial court erred in denying his motions for funds to hire a neuropsychologist and for a continuance to obtain an additional mental evaluation to more fully investigate his diagnosed congenital abnormality, "agenesis of the corpus callosum." We held that the trial court did not abuse its discretion in denying appellant's requests and affirmed. See Dirickson v. State, 329 Ark. 572, 953 S.W.2d 55 (1997). Appellant then filed a Rule 37 petition arguing that counsel was ineffective for failing to file proper motions in a timely manner and thathe was denied financial help in hiring a neuropsychologist. The trial court denied appellant's petition after a hearing. This appeal followed.

Appellant argues that counsel was ineffective for failing to pursue a continuance in a timely manner to obtain a neuropsychological evaluation. In support of his argument, appellant contends that our opinion, Dirickson v. State, supra, hinged on trial counsel's failure to diligently pursue the defense of mental disease or defect. We disagree with appellant's interpretation of our decision.

We clearly held:

In Arkansas, the statutory procedures to be followed when the defense of mental disease or defect is raised are found in Ark. Code Ann. § 5-2-305 (Repl. 1993). We have repeatedly held that a defendant's right to examination under Ake v. Oklahoma, 470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985) is protected by an examination by the state hospital as provided by this statute. Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992), cert. denied 513 U.S. 1162, 115 S. Ct. 1126, 130 L. Ed. 2d 1088 (1995); Day v. State, 306 Ark. 520, 816 S.W.2d 852 (1991); Coulter v. State, 304 Ark. 527, 804 S.W.2d 348, cert. denied 502 U.S. 829, 116 L. Ed. 2d 72, 112 S. Ct. 102 (1991); Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420, cert. denied 499 U.S. 913, 113 L. Ed. 2d 231, 111 S. Ct. 1123 (1990); Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989). An evaluation performed under this section does not normally require a second opinion, Richmond v. State, 320 Ark. 566, 899 S.W.2d 64 (1995), and further evaluation is discretionary with the trial court. Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995). Stated simply, the State is not required to pay for a defendant to shop from doctor to doctor until he finds one who will declare him incompetent to proceed with his trial. Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994). In the present case, appellant was examined at the state hospital, and, thus, the requirements under Ake were satisfied.

We determined, based on the record before us, that appellant was not entitled to an additional paid psychological evaluation. Now, appellant attempts to circumvent our prior opinion by attacking counsel's performance in relation to this same issue. As appellant notes in his brief, the "biggest hurdle he has to overcome in this argument is the second prong of the Strickland test for ineffective assistance of counsel."

In Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), theSupreme Court held that:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ... 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 by the Sixth Amendment. Second, the defendant must show 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 ... resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687.

Here, appellant's ineffective assistance claim fails because appellant cannot establish prejudice due to our previous decision, and we decline to nullify our prior holding.

Affirmed.