Patrick Stinnett v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MARCH 13, 2003

PATRICK STINNETT

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-643

APPEAL FROM THE CIRCUIT COURT OF CRITTENDEN COUNTY, CR 97-1073, HONORABLE DAVID N. LASER, JUDGE

AFFIRMED

In 1998, appellant entered a plea of guilty to sexual abuse in the first degree. He was placed on probation and was ordered to pay a fine and costs. In 2001, appellant's probation was revoked for a failure to pay the imposed fine and for sexually soliciting a child, and he was sentenced to 10 years' imprisonment. The Arkansas Court of Appeals affirmed. Stinnett v. State, CACR 01-751 (Ark. App. Feb. 27, 2002)(unpublished). Appellant then filed a petition for postconviction relief pursuant to Ark. R. Cr. P. 37. The circuit court denied the petition without holding an evidentiary hearing. We 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 showingthat 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.

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.

Appellant contends that his counsel was ineffective for failing to call certain witnesses on his behalf. The decision of whether or not to call a witness is generally a matter of trial strategy that is outside the purview of Rule 37. Nelson v. State, 344 Ark. 407, 412, 39 S.W.3d 791, 795 (2001). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to his client. Id. When assessing an attorney's decision not to call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment that experienced advocates could endlessly debate, and the fact that there was a witness or witnesses who could have offered testimony beneficial to the defense is not in itself proof of counsel's ineffectiveness. Id. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment pursuant to the standards set forth in Strickland. Id.

Appellant contends that unnamed social services witnesses could have offered testimony that would have conflicted with or impeached the testimony of the minor victim from whom he solicited sex. A bare allegation that there are witnesses that could have been called in the petitioner's behalf will not support a claim of ineffective assistance of counsel. Id. It is the province of the trier of fact to determine not merely the credibility of the witnesses, but the weight and value of their testimony. See id. at 414, 39 S.W.3d at 796. Appellant has failed to show, or even allege, that the trier of fact would have resolved any credibility determination in his favor. Moreover, the court of appeals determined on direct appeal that a preponderance of the evidence supported the revocation of appellant's probation on both the failure to pay fines and the sexual-solicitation-of-a child allegations. See Stinnett v. State, CACR 01-751, slip op. at 1 (Ark. Ct. App. Feb. 27, 2002)(unpublished). Thus, appellant has failed to demonstrate that the outcome of his revocation hearing would have been different had counsel presented the testimony of the unnamed social services witnesses. Absent a showing of prejudice, we affirm the denial of postconviction relief.

Appellant also contends that his counsel was ineffective for failing to adequately cross-examine his victim and her mother. Appellant did not raise this claim in his Rule 37 petition, and the circuit court issued no ruling on it. It is well settled that this court does not consider an argument raised for the first time on appeal. Branscum v. State, 345 Ark. 21, 33, 43 S.W.3d 148, 155 (2001). Appellant finally claims that the State failed to prove by a preponderance of he evidence that he violated his probation. The court of appeals considered this claim on direct appeal, and it is well known that sufficiency challenges cannot be raised in Rule 37 proceedings. E.g. Sanford v. State, 342 Ark. 22, 28, 25 S.W.3d 414, 418 (2000).

Affirmed.

Corbin, J., not participating.