Michael J. Medlock v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

September 30, 2004

MICHAEL J. MEDLOCK

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-839

APPEAL FROM THE CIRCUIT COURT OF SEBASTIAN COUNTY, CR 00-856, HONORABLE JAMES ROBERT MARSCHEWSKI, JUDGE

AFFIRMED

Per Curiam

A Sebastian County jury convicted appellant of aggravated robbery. He was sentenced to fifty-six years' imprisonment. The Court of Appeals affirmed on direct appeal. Medlock v. State, 79 Ark. App. 447, 89 S.W.3d 357 (2002). Appellant timely filed a petition for postconviction relief pursuant to Ark. R. Cr. P. 37. The circuit court held a hearing on the petition, and thereafter denied relief. We affirm.

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). We have held that this "cause and prejudice" test, in combination with our Ark. Sup. Ct. R. 4-2(a)(5) (2003), requires an appellant to include an abstract of his trial when appealing the denial of a Rule 37 petition. See e.g., Hubbard v. State, 334 Ark. 321, 324, 973 S.W.2d 804, 805 (1998). Here, although appellant's abstract is deficient because he failed to include an abstract of his trial, we are not ordering rebriefing pursuant to Rule 4-2(b)(3). It is clear from our review of appellant's claims that he could not prevail on appeal. An appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Booth v. State, 353 Ark. 119, 110 S.W.3d 759 (2003).

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). 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 first claims that his trial counsel was ineffective in failing to seek suppression of evidence obtained as a result of coercion prior to his consenting to a search of his car. Appellant concedes that the suppression issue was raised on direct appeal and decided adversely to him. See Medlock, supra. Accordingly, appellant's ineffective assistance claim is without merit because his trial counsel raised the issue at trial and preserved it for review on direct appeal.

Appellant also claims that his trial counsel was ineffective for not seeking a lesser-included jury instruction for robbery. Appellant's trial counsel testified at the Rule 37 hearing that seeking an instruction on robbery would have been fruitless because the victim had suffered a broken leg during the robbery, and thus, there would be no rational basis to argue against the charge of aggravated robbery. After discussion with co-counsel and appellant, trial counsel instead sought an instruction on theft of property by threat or deception. He felt it would be more beneficial to appellant because it carried a possibly lower felony classification. The trial court rejected the proffered theft of property instruction.

The circuit court did not clearly err in concluding that the decision not to seek a robbery instruction was a legitimate exercise of trial strategy. A person commits aggravated robbery if he commits robbery and inflicts or attempts to inflict death or serious physical injury upon another person. Ark. Code Ann. § 5-12-103. A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another. Ark. Code Ann. § 5-12-102.

Here, appellant's victim suffered a broken leg that required surgery. She later died from post-surgery complications. Considering the victim's injury, counsel felt that a robbery instruction would not be obtained, and instead creatively sought an instruction carrying a possible felony classification less than robbery. Even though another attorney may have chosen a different course, trial strategy, even if it proves unsuccessful, is a matter of professional judgment. Jackson v. State, 352 Ark. 359, 370, 105 S.W.3d 352, 356 (2003).

In any event, appellant cannot demonstrate prejudice by the failure to request a robbery instruction. Appellant's defense at trial was denial. When a defendant relies upon the defense of denial, there is no rational basis for giving any lesser-included offense instruction. E.g. Vickers v. State, 313 Ark. 64, 68, 852 S.W.2d 787, 789-90 (1993).

Affirmed.