Robert Lee Trotter, Jr. v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

April 29, 2004

ROBERT LEE TROTTER, JR.

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-363

APPEAL FROM THE CIRCUIT COURT OF HOWARD COUNTY, CR 2000-58, HONORABLE TED C. CAPEHEART, JUDGE

AFFIRMED

Per Curiam

Appellant was found guilty by a jury of commercial burglary and misdemeanor theft of property. He was sentenced to twenty years' imprisonment and was fined $1,000. The Court of Appeals affirmed. Trotter v. State, CACR 01-306 (Oct. 9, 2002)(unpublished). Appellant timely filed a petition for postconviction relief pursuant to Ark. R. Cr. P. 37. By written order, the circuit court denied relief without first holding a hearing. We affirm because the record conclusively shows that appellant's petition was without merit.

Appellant claimed in his petition that the evidence introduced against him was insufficient to support his convictions, that his trial counsel was ineffective in failing to move for a directed verdict, that his appellate counsel was ineffective in failing to fully review and complete the record on appeal, that his privilege against self-incrimination was violated, that he was denied a fair and impartial trial and due process of law, and that he should have been subjected to a mental evaluation before trial. The circuit court's order denying relief did not specify the parts of the record forming the basis of the decision. Where a circuit court concludes, without a hearing, that the petitioner is not entitled to relief, Rule 37.3(a) requires the circuit court to make written findings specifying the parts of the record that form the basis of the trial court's decision. Carter v. State, 342 Ark. 535, 538, 29 S.W.3d 716, 718 (2000). If the circuit court fails to make such findings, it is reversible error unless the record before this court conclusively shows that the petition is without merit. Id.

The Supreme Court's enunciated standard for assessing the effectiveness of counsel requires showings that counsel's performance "fell below an objective standard of reasonableness", and that counsel's errors "actually had an adverse effect on the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 693 (1984). 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)). The circuit court did not err in denying appellant's claims without first holding a hearing.

The majority of appellant's argument below, and repeated on appeal, is that the evidence introduced against him was insufficient to support his convictions, and that his counsel was ineffective in failing to move for a directed verdict and failing to fully review and complete the record on appeal. Intertwined with these claims are the allegations that a police officer and another state's witness committed perjury at trial. It is apparent from appellant's argument that his privilege against self-incrimination claim stems from his perjury allegations. Likewise, his claims that he was denied a fair trial and due process of law are part of his sufficiency of the evidence claims.

Appellant, however, cannot directly challenge the sufficiency of the evidence supporting his convictions in a Rule 37 proceeding. Sanford v. State, 342 Ark. 22, 28, 25 S.W.3d 414, 418 (2000). Appellant's abstract shows his counsel made and a renewed a motion for directed verdict based on insufficient evidence, although the motion was general and not specific as required by Ark. R. Crim. P. 33.1(a). Despite counsel's general motion for directed verdict, counsel was not ineffective because appellant suffered no prejudice. The Court of Appeals reviewed appellant's challenge to the sufficiency of the evidence, which was briefed by all parties in appellant's no merit appeal, and concluded that it was without merit. Trotter v. State, CACR 01-306, slip op. at 2 (Oct. 9, 2002)(unpublished). Thus, the Court of Appeals' review is now the law of the case on the issue. See e.g. Hill v. State, 347 Ark. 441, 65 S.W.3d 408 (2002). Even if counsel had made a specific motion it would have failed. Counsel cannot be ineffective for failing to make an argument that is without merit. Camargo v. State, 346 Ark. 118, 128, 55 S.W.3d 255, 262-63 (2001).

Additionally, appellant has failed to explain how his counsel failed to fully review and complete the record on appeal. On direct appeal, appellant's counsel moved to withdraw on the ground that any appeal was wholly without merit, and the Court of Appeals decision granting the motion indicates that counsel's review and completion of the record was adequate - "The motion is accompanied by an abstract and brief referring to everything in the record that might arguably support the appeal, including all motions, objections, and requests decided adversely to appellant and a statement of reasons why none of those rulings would be meritorious ground for reversal." Trotter v. State, CACR 01-306, slip op. at 1 (Oct. 9, 2002)(unpublished). Appellant also failed to offer any evidence supporting his allegations of perjury or otherwise show how his privilege against self-incrimination was violated. Conclusory allegations that are unsupported by facts do not provide a basis for either an evidentiary hearing or postconviction relief. Nance v. State, 339 Ark. 192, 195, 4 S.W.3d 501, 503 (1999). To the extent appellant's perjury allegations challenge the witnesses' credibility, the jury was free to believe all or part of their testimony and this court is bound by the jury's credibility determinations. See Williams v. State, 351 Ark. 215, 222, 91 S.W.3d 54, 58 (2002), cert. denied, 123 S. Ct. 2257 (2003).

Finally, as the circuit court noted in denying relief, it was not appropriate for appellant to raise his mental evaluation claim in his Rule 37 petition. It is not appropriate to raise trial errors, including constitutional errors, for the first time in a Rule 37 proceeding. Rowbottom v. State, 341 Ark. 33, 36, 13 S.W.3d 904, 906 (2000).

The record before this court conclusively shows that appellant's petition was without merit. Accordingly, the circuit court's denial of relief is affirmed.

Affirmed.