Keon Roshun Johnson v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-548

NOT DESIGNATED FOR PUBLICATION

KEON ROSHUN JOHNSON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered September 29, 2005

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 2001-3973, HONORABLE JOHN LANGSTON, JUDGE

AFFIRMED

PER CURIAM

Appellant was found guilty by a jury of two counts of committing a terroristic act, a Class Y felony, for which an aggregate sentence of 660 months' imprisonment was imposed. The Arkansas Court of Appeals affirmed. Johnson v. State, CA CR 02-1210 (Ark. App. Sept. 24, 2003). Appellant subsequently filed in the trial court a timely petition pursuant to Ark. R. Crim. P. 37.1 seeking to vacate the judgment. The petition was denied, and the record on appeal from the order has been lodged here.

First, appellant has failed to include in his brief, a proper abstract of his trial. Even so, we are not ordering rebriefing pursuant to Ark. Sup. Ct. R. 4-2(b)(3) because 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, 120, 110 S.W.3d 759, 760 (2003) (per curiam).

Appellant raises the following claims on appeal: (1) the trial court erred in denying appellant's motions for directed verdict as the State failed to introduce substantial evidence of appellant's identity; (2) the trial court erred in denying appellant's objection to State's witness, Eddrick Childs; (3) the trial court erred in denying appellant's objection to State's witness, Douglas Childs; and (4) the trial court erred in denying appellant's request to relieve appointed counsel.

All other claims raised below but not argued on appeal are considered abandoned. See Echols v. State, 344 Ark. 513, 519, 42 S.W.3d 467, 471 (2001).

Appellant's first three claims assert trial error, and therefore, are not cognizable in Rule 37 proceedings. 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). Moreover, Rule 37 does not allow an appellant the opportunity to reargue points settled on direct appeal. Kemp v. State, 348 Ark. 750, 765, 74 S.W.3d 224, 232 (2002). Because appellant's claims are not cognizable under Rule 37, we affirm the denial of relief as to these points.

Appellant's fourth claim is that the trial court erred by denying his request to relieve counsel. Appellant's argument actually includes several allegations of ineffective assistance of counsel, not all of which were raised below. Claims raised for the first time on appeal will not be considered, and are procedurally barred. Nooner, 339 Ark. at 256, 4 S.W.3d at 499.

The first claim of ineffectiveness raised below and on appeal involves counsel's lack of preparation. 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, 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) (per curiam)). 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.

Appellant has presented no evidence to support his claim that counsel was unprepared. Conclusory allegations unsupported by facts and which provide no 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). The denial of relief is therefore affirmed.

According to appellant, counsel was also ineffective for failing to secure a Detective Knowles as a witness at trial. According to appellant, Detective Knowles would have been able to verify that State's witness, Eddrick Childs made a tape-recorded statement stating that he saw appellant in the deceased's apartment with a chrome pistol. However, appellant argues that Childs changed his story, testifying at trial that "it wasn't no chrome." Appellant argues that if the jury had heard about Childs' prior-inconsistent statement, that the outcome would have been different.

That there were witnesses who could have offered beneficial testimony is not in itself proof of counsel's ineffectiveness, and whether to call a witness is generally a matter of trial strategy outside the purview of Rule 37. See State v. Goff, 349 Ark. 532, 541, 79 S.W.3d 320, 326 (2002) (per curiam). Because counsel's decision not to call Detective Knowles was one of trial strategy, we affirm the ruling below.

Finally, any claim regarding counsel's ineffectiveness resulting from an alleged conflict of interest is conclusory, and as we have stated, conclusory allegations are insufficient to warrant postconviction relief. See Nelson, supra. The denial of relief on this point is affirmed.

Affirmed.