Glenn Adolph Williams v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 03-873

NOT DESIGNATED FOR PUBLICATION

GLENN ADOLPH WILLIAMS

APPELLANT

VS.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered November 18, 2004

APPEAL FROM THE FULTON COUNTY CIRCUIT COURT, NO. CR 00-42-1, HON. JOHN DAN KEMP JR., JUDGE

AFFIRMED

PER CURIAM

A jury convicted appellant of manufacture of a controlled substance, possession of a controlled substance with intent to deliver, and possession of drug paraphernalia with intent to manufacture methamphetamine. He was sentenced to a total of 100 year's imprisonment. The Court of Appeals affirmed. Williams v. State, CACR 01-1143 (Ark. App. Sept. 4, 2002)(unpublished). Appellant then timely filed a petition for postconviction relief pursuant to Ark. R. Cr. P. 37. Appellant subsequently filed an affidavit in support of his petition and an amended petition. By written order, the circuit court denied appellant's petition without first holding a hearing and dismissed with prejudice the affidavit and amended petition. We affirm because the record conclusively shows that appellant's petition was without merit.

Appellant raised numerous claims in his petition. The circuit court's order denying relief did not specify the parts of the record forming the basis of the decision. Appellant contends that the circuit court erred in denying relief without first holding a hearing. 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. 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). Here, the circuit court did not err in denying appellant's petition without holding a hearing because appellant's petition was without merit.

In this appeal, appellant raises numerous claims of ineffective assistance of counsel. 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)). Each of the ineffective assistance of counsel claims raised in this appeal are conclusory in nature or are conceded by appellant to be without merit.

Appellant contends that his trial counsel was ineffective for failing to make a specific directed verdict challenge to the sufficiency of the evidence, for failing to object to portions of an affidavit in support of an application for a search warrant, for failing to object to introduction of an unavailable witness statement into evidence, and for failing to object to hearsay of other crimes, wrongs, and acts. Each argument in support of these claims is conclusory in nature. Some consist of no more than one sentence restating the issue. Appellant does not elaborate on how the alleged errors prejudiced him or affected the outcome of his trial. Conclusory allegations unsupported by facts and which lack allegation or showing of prejudice are insufficient to warrant Rule 37 relief. See Nelson v. State, 344 Ark. 407, 413, 39 S.W.3d 791, 795 (2001)(per curiam).

Appellant also raises three claims which he admits are without merit. He contends that counsel was ineffective in failing to file timely motions for discovery of exculpatory evidence, but then concedes that counsel did so and that his argument is without merit. He concedes that his claims that the State brought him to trial knowing he was under medication and that his counsel was inadequately prepared for his defense are without merit.

In addition to the claims of ineffective assistance of counsel, appellant contends that the State failed to disclose exculpatory evidence prior to trial and that he was not formally arraigned within forty-eight hours of arrest. Appellant's allegations are unsupported and conclusory, lacking any showing of prejudice. See Andrews v. State, 344 Ark. 606, 620, 42 S.W.3d 484, 493-94 (2001)(per curiam). Also, both claims could have been raised on direct appeal. Rule 37 does not provide an avenue to raise matters that could have been raised on direct appeal, including constitutional claims. E.g., Nooner v. State, 339 Ark. 253, 256, 4 S.W.3d 497, 498-99 (1999). Appellant further argues that the State attempted to mislead the court and defense counsel and failed to make a good faith effort to locate a witness. Again, the allegations are unsupported and lack any showing of prejudice. See Andrews, supra.

Appellant's final argument is that the cumulative effect of each of the above errors so prejudiced him that reversal is warranted. This court does not recognize cumulative error in allegations of ineffective assistance of counsel. Noel v. State, 342 Ark. 35, 42, 26 S.W.3d 123, 128 (2000). Furthermore, this court has repeatedly held that for a cumulative-error argument to be upheld on appeal, the appellant must show that there were objections to the alleged errors individually and that a cumulative-error objection was made to the trial court and a ruling obtained. Robinson v. State, 348 Ark. 280, 298-99, 72 S.W.3d 827, 839 (2002). Appellant has not met his burden in this appeal.

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.