Donald Gene Strom v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 03-743

NOT DESIGNATED FOR PUBLICATION

DONALD GENE STROM

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered March 31, 2005

APPEAL FROM THE CIRCUIT COURT OF GRANT COUNTY, CR 98-30-1, HON. CHRIS WILLIAMS, JUDGE

AFFIRMED

PER CURIAM

Donald Gene Strom was convicted in the Grant County Circuit Court of manufacturing a controlled substance, methamphetamine, and possession of drug paraphernalia. He was sentenced to forty years for the manufacturing charge and ten years for the possession charge, to be served concurrently in the Arkansas Department of Correction. His conviction was affirmed in Strom v. State, CA CR 00-137, slip op. at 2001 WL 167822 (Ark. App. Feb. 21, 2001) ("Strom I"). Strom subsequently filed a petition for postconviction relief pursuant to Ark. R. Cr. P. 37.1. The circuit court held a hearing on the petition and issued an order denying relief. We affirm.

Appellant raises three points on appeal. Appellant's first point alleges trial counsel was ineffective for failing to timely object and request a mistrial when the prosecution asked a witness a question about appellant Strom having previously manufactured methamphetamine. Appellant next alleges trial counsel was ineffective for failure to investigate and call to trial a witness. Appellant's last point asserts his innocence and alleges violation of the prohibition against cruel and unusual punishment and due process.

The criteria for assessing the effectiveness of counsel were enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). When a convicted defendant complains of ineffective assistance of counsel, he must show that counsel's representation fell below an objective standard of reasonableness and that counsel's deficient performance prejudiced his defense. Judicial review of counsel's performance must be highly deferential, and a fair assessment of counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's conduct, and to evaluate the conduct from counsel's perspective at the time. Andrews v. State, 344 Ark. 606, 42 S.W.3d 484 (2001)(per curiam). A reviewing court must indulge a strong presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 611, 42 S.W.3d at 487.

To prevail on any claim of ineffective assistance of counsel, the petitioner must first show counsel's performance was deficient through a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Additionally, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Id. at 611, 42 S.W.3d at 488. The petitioner 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. at 612, S.W.3d at 488.

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. In making a determination on a claim of counsel's ineffectiveness, this court considers the totality of the evidence presented to the judge or jury. Id. We will not reverse the denial of postconviction relief unless the trial court's findings are clearly erroneous. Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (2002). In this case, as the State correctly points out in its brief, appellant has failed to abstract the record of the trial, so that the totality of the evidence is not before us. Even so, based upon the record before us we can determine the trial court was not clearly erroneous in its findings.

Appellant's first point concerns an exchange between the prosecutor and a witness at trial, Jimmy Higgins. The relevant facts are set out in Strom I, but the questions at issue referred to Mr. Higgins being aware of the defendant "cooking dope" previously. The Court of Appeals discussed the admissibility of the statement and the prosecution's purpose in asking the question, but dealt with the assertion of error on direct appeal by finding the defendant had objected to the testimony and received all the relief requested, since the request for mistrial was not made until several questions later. Appellant asserts that the holding by the Court of Appeals that the objection, or more correctly, that the motion for mistrial, was late was law of the case under Cloird v. State, 352 Ark. 190, 99 S.W.3d 419 (2003). As the State notes in its brief, the comments by the Court of Appeals as to whether a mistrial was merited were mere dicta. Green v. State, 343 Ark. 244, 33 S.W.3d 485 (2000). The State asserts we are not bound by Strom I to find that prejudice was shown. Here, we are not required to reach the question of prejudice, since the appellant made no showing of deficient performance sufficient to meet the first prong under the Strickland test.

In the postconviction relief hearing, trial counsel testified that he delayed his request in order to avoid adding emphasis to the testimony. The trial court found, based on that testimony, that the delay was a matter of trial strategy, and not deficient performance outside the standard of reasonable conduct. We agree.

The question of when or whether to object is clearly a matter of trial strategy. Experienced advocates might differ about when, or if, objections are called for since, as a matter of trial strategy, further objections from counsel may succeed in making the comments seem more significant to the jury. Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (1999). Matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel's professional judgment and are not grounds for a finding of ineffective assistance of counsel. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). Even though another attorney may have chosen a different course, trial strategy, even if it proves unsuccessful, is a matter of professional judgment. Id. at 41, 26 S.W.3d at 127. Evaluating the conduct from counsel's perspective at the time and avoiding the tendency to view that conduct through the distorted lens of hindsight, trial counsel's decision to delay his objection was a professional judgment that may at most have been improvident, but did not fall outside the range of reasonable professional assistance.

Appellant next asserts trial counsel was deficient for failing to investigate and call witnesses. The only witness appellant names in this regard is Devon Hankins. While appellant makes some vague conclusory allegations concerning the substance of Ms. Hankins's testimony and impact on the trial, Ms. Hankins was not called as a witness at the postconviction relief hearing. Appellant must show prejudice so as to have raised a reasonable doubt but for trial counsel's errors. Conclusory allegations that are unsupported by facts do not provide a basis for postconviction relief. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004)(citing Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983)). This court has held that it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Id. at 74, 146 S.W.3d at 882. The trial court was correct in its finding that appellant failed to present any evidence on this issue.

Appellant asserts his innocence as his last point of error. This is simply a challenge to the sufficiency of the evidence. As a direct attack on the judgment below, the claim is not cognizable in a postconviction relief proceeding. Postconviction relief under Ark. R. Cr. P. 37.1 is a means to collaterally attack a conviction, not a means for direct attack on the judgment. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992)(per curiam). We do not permit an appellant to rechallenge the sufficiency of the evidence at trial in a postconviction proceeding. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). Accordingly, we affirm the trial court's denial of postconviction relief. Affirmed.