Wardell Green v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

WARDELL GREEN

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

No. CR 03-474

Opinion Delivered September 30, 2004

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 98-3799, HONORABLE MARION A. HUMPHREY, JUDGE

AFFIRMED

PER CURIAM

Appellant was convicted of aggravated robbery and theft of property. He was sentenced to fifty years in prison as a habitual offender. The Arkansas Court of Appeals affirmed. Green v. State, CA CR 00-1258 (Ark. App. June 6, 2001). Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37, which was denied following an evidentiary hearing. From that order comes this appeal.

We begin with appellant's allegation that his right to counsel was violated by the "fraudulent circumstances under which his attorney[,] James O. Clawson [,] held a law license." Following appellant's trial, counsel was indicted for bankruptcy fraud and was later convicted. He has since surrendered his law license. During the course of that litigation, it was discovered that counsel had been convicted in Oklahoma in the 1990s and had served time in the Oklahoma prison system. Appellant contends that although counsel held an Arkansas law license, he had the license by " the device of a continuing fraud" and that this amounts to a "structural denial" of counsel in violation of the Sixth Amendment to the United States Constitution and Article 2 § 10 of the Arkansas Constitution.

In the case of Shibley v. State, 324 Ark. 212, 920 S.W.2d 10 (1996), we rejected the defendant's claim that he had been denied the right to counsel when his attorney's license was suspended at the time of trial, but the suspension was on appeal. In Shibley, we also noted cases from the Second Circuit, including United States v. Novak, 903 F.2d 883 (2d Cir. 1990), which appellant in the instant case cites in support of the application of the per se rule of ineffective assistance of counsel:

[The Second C]ircuit has recognized that, in cases where counsel has never passed the bar exam, or has obtained his law license by fraudulent means, or is himself implicated in the same crime the accused is charged with, there is a per se violation of the appellant's right to counsel. See Solina v. United States, 709 F.2d 160 (2d Cir.1983); United States v. Novak, 903 F.2d 883 (2d Cir.1990); and United States v. Cancilla, 725 F.2d 867 (2d Cir.1984), respectively. However, the Second Circuit has expressly refused to extend its per se rule beyond those extreme situations. See Bellamy v. Cogdell, 974 F.2d 302 (2d Cir.1992), cert. denied, 507 U.S. 960, 113 S. Ct. 1383, 122 L. Ed. 2d 759 (1993), a case with facts similar to this one in which the court found no violation of the accused's right to counsel.

Shibley, 324 Ark. at 216, 920 S.W.2d at 12.

In Novak, the Second Circuit concluded that counsel's representation was per se insufficient to satisfy the Sixth Amendment right to effective assistance of counsel. Novak, 903 F.2d at 884. In that case, it was revealed that Novak's attorney, Joel Steinberg, obtained admission to the New York State Bar through fraudulent means. Id. Following Steinberg's arrest on charges of child abuse, proceedings were held seeking his disbarment because of misrepresentations made in connection with his application for admission to practice law. Id. at 885. He was later disbarred. Id. at 886.

In 1989, Novak filed a petition pursuant to 28 U.S.C. § 2255, alleging that his right to effective assistance of counsel had been violated. Novak, 903 F.2d at 886. The petition was dismissed. Id. On appeal, Novak argued that his conviction should be vacated pursuant to Solina v. United States, supra, which holds that it is a per se Sixth Amendment violation when an attorney was never licensed to practice law in any jurisdiction. Novak, 903 F.2d at 886. The Solina court did note that its decision was limited to situations where the defendant did not know that his attorney was not authorized to practice law in any state and that the lack of authorization stemmed from failure to seek it or from its denial for a reason dealing with legal ability, such as one's failure to pass the bar examination or want of moral character. Solina, 709 F.2d at 167. Novak addressed the "substantive-technical dichotomy" discussed in Solina:

The defect in Steinberg's licensure was not simply technical but was instead serious and substantive. At the time of his admission to the bar, Steinberg had not met the State's normal substantive requirements for admission to the New York State Bar. His competence to practice law had never been tested, and he was not entitled to bypass such testing. Had the truth been known as to his early law-school career and the reason for its interruption, he plainly would have been denied admission to the bar unless he took the bar examination; had he taken the bar examination, there is no assurance that he would have passed. Thus here, as in Solina, there has been no foundation for an assumption that defense counsel had the legal skills necessary to permit him to become a "duly admitted" member of the bar. We see no significant distinction between a "lack of ... authorization stemm[ing] from failure to seek it or from its denial for a reason going to legal ability, such as failure to pass a bar examination, or want of moral character," Solina, 709 F.2d at 167, and an invalidly gained authorization stemming from a fraud that both prevented the state from assessing legal ability and revealed a want of moral character.

Novak, 903 F.2d at 890.

In the instant case, the trial court found that counsel was in good standing before the Arkansas Bar on the date of appellant's trial, and the fact that he hid his prior conviction was not per se evidence of ineffective assistance of counsel. Instead, the trial court applied the two-prong test of Strickland v. Washington, 466 U.S. 668 (1984) and held that appellant failed to satisfy either prong.

According to Strickland:

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, 342 Ark. 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.

We hold that the per se rule of ineffective assistance does not apply to the instant case, where counsel had in fact, completed the requirements to practice law in the State of Arkansas and was licensed. This is unlike the situation in Novak, as counsel in that case had not met the State's substantive requirements for admission to the bar, and his competence to practice law had never been tested. As the trial court noted, counsel did engage in acts subsequent to his licensing and prior to his representation of appellant that subjected him to disbarment; however, that does not diminish counsel's ability to effectively represent appellant as required by the Sixth Amendment. Although counsel surrendered his law license following appellant's trial, he did possess the requisite legal skills to represent appellant. Accordingly, we find that counsel was not ineffective per se, and instead apply the two-prong test of Strickland to appellant's claims of ineffective assistance.

His first claim of ineffectiveness is that counsel failed to request a lesser-included offense instruction for robbery. According to the trial court, the decision to proffer a lesser-included instruction was a matter of trial strategy; moreover, such an instruction would have been inconsistent with appellant's defense at trial that he was not present at the scene of the crime.

At the Rule 37 hearing, appellant testified that he was not involved in the crime, that he did not know any of the people involved, and that he was not even there. We were faced with a similar situation in the case of Hall v. State, 326 Ark. 318, 933 S.W.2d 363 (1996), in which Hall claimed that counsel was ineffective for failing to tender the lesser-included instruction on first-degree-felony murder. In that case, Hall's defense was that he had nothing to do with the victim's death, and in fact claimed that two other men were implicated in the killing. Id. at 325, 933 S.W.2d at 367. In rejecting Hall's claim, we held:

It would have made no sense to instruct on first-degree-felony murder when Hall contended he did not kill the victim, but someone else did. See Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993). As a matter of strategy, Hall's trial counsel could have foregone tendering or arguing any lesser offense to the jury, especially since the lower offense was inconsistent with his defense at trial. Matters of trial tactics and strategy are not grounds for postconviction relief, and this reason alone is sufficient to affirm on this point. See Vickers v. State, 320 Ark. 437, 898 S.W.2d 26 (1995).

Hall, 326 Ark. at 325-26, 933 S.W.2d at 367. Given appellant's defense strategy, we agree with the trial court that it was reasonable for counsel to opt not to request such an instruction, and we affirm the ruling below.

Appellant goes on to claim that counsel was ineffective for failing to call an alibi witness and that the trial court erred in "crediting the testimony of the attorney over that of the client and the witness." Appellant claims that if called, Avery Starks would have testified that appellant was with him on the day of the alleged offense. According to appellant, he gave counsel Starks' name and address, but counsel did not talk to or subpoena Starks as a witness. Appellant also argues that the trial court erred in believing counsel's testimony over that of appellant and Starks on this issue.

At the Rule 37 hearing, counsel testified that appellant never told him that Starks was a potential alibi witness, and the trial court found his testimony credible. Moreover, the trial court noted that Starks testified that he was married to appellant's sister at the time and that appellant worked for Starks but that he kept no records of appellant's time. In denying relief, the trial court noted that this information lacked reliability and that the decision of whether to call a witness is a matter of trial strategy and not grounds for postconviction relief.

We defer to the trial court's determinations of credibility on Rule 37 appeals. Lee v. State, 343 Ark. 702, 725, 38 S.W.3d 334, 349 (2001). Because we find no error, we affirm the ruling below.

Affirmed.