Danny J. Ridling v. State of Arkansas

cr03-428

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

October 7, 2004

DANNY J. RIDLING

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-428

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 2000-663, HONORABLE MARION A. HUMPHREY, JUDGE

AFFIRMED

Per Curiam

Appellant was convicted of rape for having sex with a girl less than fourteen years of age. He was sentenced to 420 months' imprisonment. We affirmed on appeal. Ridling v. State, 348 Ark. 213, 72 S.W.3d 466 (2002). Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37, which was denied without a hearing. From that order comes this appeal.

Appellant claims that the trial court erred in denying him an evidentiary hearing. Under Rule 37.3(a), the trial court has discretion to deny relief without a hearing. Where the trial court concludes, without a hearing, that the petitioner is not entitled to relief, Rule 37.3(a) requires that the court make written findings specifying the parts of the record that form the basis of the court's decision. E.g., Carter v. State, 342 Ark. 535, 538, 29 S.W.3d 716, 718 (2000). If the trial court fails to make such findings, it is reversible error, unless the record before this court conclusively shows that the petition is without merit. See id. 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). As shown below, we cannot say that the trial court clearly erred in denying relief on appellant's claims without first holding a hearing.

As for appellant's related claim that the court's order lacks specific references to the parts of the record or files relied upon by the court in denying relief, we also find no merit. This court can affirm a trial court's order notwithstanding the failure to comply with Rule 37.3(a), if it can be determined from the record that the petition is wholly without merit. Bohanan v, State, 327 Ark. 507, 510, 939 S.W.2d 832, 833 (1997).

For his first claim, appellant argues that counsel was ineffective for advising him against accepting a plea offer to the lesser charge of third-degree carnal abuse. The Supreme Court enunciated the standard for assessing the effectiveness of counsel in Strickland v. Washington, 466 U.S. 668 (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 a 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.

Id. at 687. Thus, a defendant must first show 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 a denial of relief under Rule 37, we must indulge in a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. Noel v. State, 342Ark. 35, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, appellant 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 by a mere showing of error by counsel or by revealing that counsel's failure to object prevented an issue from being addressed on appeal. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (1997) (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). We must 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, supra.

In denying relief on this point, the trial court held that the plea offer was "fully explained" to appellant by counsel; Deputy Prosecuting Attorney John Hout; and his future attorney, Bill James. According to the trial court, appellant's failure to accept the plea agreement was his decision based upon the advice of three lawyers, all of whom instructed appellant as to the ramifications of his rejecting the offer. The trial court also noted that advice as to the acceptance of a plea agreement is a matter of trial strategy and not a basis for Rule 37 relief. See Lomax v. State, 285 Ark. 440, 688 S.W.2d 283 (1985) (per curiam).

According to our holding in Lomax, urging an accused to accept a negotiated plea does not constitute ineffective assistance of counsel, as it is a matter of trial strategy and outside the purview of Rule 37. Id. at 441, 688 S.W.2d at 284-85. As for advising appellant not to accept the plea offer, even if this was bad advice, it is not tantamount to a denial of a fair trial. Isom v. State, 284 Ark.426, 431, 682 S.W.2d 755, 758 (1985). We find no merit and affirm.

Appellant's second claim is that counsel was ineffective for making disparaging remarks about appellant during closing arguments to the jury. In denying relief, the trial court held that because counsel was dealing with "absolute proof" that appellant engaged in sexual intercourse with

the victim after her fourteenth birthday and that paternity tests proved that he was the father of her child, "any argument that [appellant] viewed as disparaging would be considered trial strategy."

Appellant does not state what disparaging remarks were made by counsel only that they were made and that he is entitled to a hearing on this point. Appellant offers no compelling evidence or argument to support this claim, and we have ruled that a conclusory allegation cannot be a basis for postconviction relief. See, e.g., Sanford v. State, 342 Ark. 22, 27, 25 S.W.3d 414, 417 (2000). We therefore affirm the trial court's denial of relief without a hearing.

Appellant's third claim is that counsel failed to object to two jurors who were sleeping during his trial. In denying relief, that trial court held that there was no evidence that any juror was asleep during trial; therefore, appellant showed no basis for an objection. In Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2002), Henderson moved for a new trial on the basis that jurors feel asleep during his trial. We denied the motion because the appellant made no showing in his motion, supporting affidavits, or trial testimony regarding counsel's knowledge of the alleged sleeping jurors. Id. at 709, 80 S.W.3d at 379. Similarly, appellant in the instant case has failed to make such a showing. Accordingly, we find that counsel was not ineffective for failing to make an objection when there has been no showing that there was a basis for the objection and that counsel was aware of the need for an objection. We therefore affirm the ruling below.

Appellant's fourth claim on appeal is that counsel failed to call a witness to show that appellant did not live around the park or a witness to serve as an alibi. The victim testified that she and appellant met at a park in North Little Rock, and that was the extent of the testimony concerning a park. The State did not allege either in its opening statement or closing argument that appellant habitually lived near parks, and the State did not, as appellant alleges, advance a theory that appellant was a sexual predator who lived near parks. In denying relief on this point, the trial court ruled that counsel's decision of whether to call certain witnesses was a matter of trial strategy.

Appellant claims that if called, Johnny Baugh would have testified that he moved appellant to his address after the victim was fourteen and that prior to that time, appellant lived a long way from the victim, thus discrediting the victim's testimony that she began having sex with appellant when she was eleven years old. Moreover, appellant claims that a second witness, the records keeper for appellant's employer, would have testified that appellant worked until 5:00 p.m. each day; therefore, he could not have met the victim during the afternoon as she claimed.

As mentioned, there was undisputed proof that appellant had sexual intercourse with the victim around the time of her fourteenth birthday and fathered her child. Neither of these witnesses could have contradicted those facts and changed the outcome of the trial. Further, the decision of whether to call a witness is a matter of trial strategy that is outside the purview of Rule 37. See State v. Goff, 349 Ark. 532, 541, 79 S.W.3d 320, 325-26 (2002). The trial court's denial of relief is affirmed.

Appellant goes on to assert the following claims under the heading "Due Process:" (1) that the State "promoted a false fact theory to the jury" that appellant lived around parks in order to prey on underage girls; (2) that appellant received a disproportionate sentence compared to those received by others convicted of the same offense, which was violative of the Eighth Amendment prohibition against cruel and unusual punishment; (3) that the strict liability provision of Ark. Code Ann. § 5-14-102(b) (Repl. 1997), which allows an accused to be convicted for having sex with a person less than fourteen years of age without having knowledge of the victim's age, is a denial of due process; and

finally, (4) that appellant was denied due process by the use of the rape-shield statute, Ark. Code Ann. § 16-42-101 (Repl. 1999), in the sentencing phase of trial.

As to claims one through three, although relief was denied by the trial court, these issues should not have been addressed as they are not cognizable under Rule 37. Rule 37 does not provide a method for review of trial error or serve as a substitute for appeal. Nooner v. State, 339 Ark. 253, 256, 4 S.W.3d 497, 498 (1999). Even constitutional claims must be raised at the trial level and on direct appeal, rather than Rule 37 proceedings. Id. at 256, 4 S.W.3d at 498-99. The exception to this rule is if an issue is so fundamental as to render the judgment void and open it to collateral attack. Id. at 257, 4 S.W.3d at 499 (citing Neal v. State, 270 Ark. 442, 447, 605 S.W.2d 421, 424 (1980). Appellant's claims do not rise to that level; accordingly, we will not consider their merit. As for any claims of ineffective assistance as to counsel's handling of these issues, such claims were raised in appellant's petition but abandoned on appeal and will not be considered. Those claims raised below but not argued on appeal are considered abandoned. Echols v. State, 344 Ark. 513, 519, 42 S.W.3d 467, 471 (2001).

As for the fourth point that appellant was denied due process by the use of the rape-shield statute in the sentencing phase of trial, we addressed this point on direct appeal. See Ridling, supra. In denying relief, we held that the rape-shield law applies to sentencing as well as the guilt phase of trial and that the trial court did not err in refusing to permit the introduction of evidence regarding the victim's prior sexual history. Id. at 226, 72 S.W.3d at 474. If an issue has previously been decided on appeal, it cannot be reargued under Rule 37. Neal, supra. Because this court has previously rejected this claim, it is procedurally barred from being considered in these proceedings. All other claims raised by appellant in his petition but not argued on appeal are considered abandoned. Echols, supra. Because we either find no merit to appellant's claims or they are barred from appellate review, we hold that the trial court did not err in failing to conduct an evidentiary hearing.

Affirmed.