Stanley Ellison v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-723

NOT DESIGNATED FOR PUBLICATION

STANLEY EUGENE ELLISON

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered October 6, 2005

APPEAL FROM THE CIRCUIT COURT OF CRAWFORD COUNTY, CR 2002-59, HON. GARY RAY COTTRELL, JUDGE

AFFIRMED

PER CURIAM

Stanley Ellison was found guilty by a jury of murder in the first degree and sentenced to life imprisonment. He appealed and the judgment was affirmed on appeal. Ellison v. State, 354 Ark. 340, 123 S.W.3d 874 (2003). Ellison then filed a timely pro se petition for postconviction relief under Ark. R. Crim. P 37.1. Richard Young filed an appearance as counsel for Ellison and requested a continuance two days before the date set for the postconviction relief hearing. Mr. Young again requested a continuance on the day of the hearing and the trial court provided Mr. Young with an additional 45 minutes to prepare the case, but otherwise denied the request. Following the hearing, the trial court denied the petition and later entered a written order to that effect. Ellison now brings this appeal of that order.

Appellant Ellison raises four points on appeal. In his first three points appellant asserts that the trial court erred (1) in not finding trial counsel ineffective for not calling two witnesses; (2) by not granting a continuance; (3) by not providing proper written findings and conclusions of law. In his fourth point, appellant contends he was denied due process by the failure to appoint counsel to represent him for this appeal.

Appellant has not provided a brief that conforms with Ark. Sup. Ct. R. 4-2. Appellant did provide an abstract of the trial and summaries of the two witnesses' testimony at the postconviction relief hearing. Appellant has not provided any summary of trial counsel's testimony at the postconviction relief hearing, nor did his addendum include the petition. The State has provided a supplemental addendum with a copy of the petition, and cites to a supplemental transcript in reference to trial counsel's testimony. Appellant must provide an abstract or addendum sufficient to conduct a meaningful review. Campbell v. State, 349 Ark. 111, 76 S.W.3d 271 (2002). In the case at hand, we do not provide appellant an opportunity to submit a complying brief, since it is clear from the record that appellant could not prevail. This court has consistently held that 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. Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999) (per curiam); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996) (per curiam); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994) (per curiam); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994) (per curiam). Since it is clear from the record before us that appellant could not prevail, we do not provide an opportunity for him to supplement his abstract and addendum and affirm the denial of postconviction relief. We will go to the record to affirm.

Appellant first asserts the trial court erred in holding trial counsel was not ineffective for failing to call to testify at trial either appellant's mother or Jerry Ellison. The trial judge set out his findings at the hearing and later entered a written order, in each case indicating he found counsel did not call the witnesses as trial strategy and tactics, further finding the testimony would have been redundant to other witnesses who did testify.

We do not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous or clearly against the preponderance of the evidence. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002).

In an appeal from a trial court's denial of a petition pursuant to Ark. R. Crim. P. 37.1, the question presented is whether, based on the totality of the evidence, the trial court clearly erred in holding that counsel's performance was not ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984); Jackson v. State, ___ Ark. ___, 105 S.W.3d 352 (2003). To prevail on a claim of ineffective assistance of counsel, the claimant must first show that counsel's performance was deficient, with errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment, and claimant must also show that this deficient performance prejudiced his defense through a showing that petitioner was deprived of a fair trial. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 38, 26 S.W.3d at 125. To rebut this presumption, 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, i.e., that the decision reached would have been different absent the errors. Id. Appellant has failed to show that had counsel called either of the witnesses, the testimony would have resulted in a different outcome at trial.

The objective in reviewing an assertion of ineffective assistance of counsel concerning the failure to call certain witnesses is to determine whether this failure resulted in actual prejudice which denied the petitioner a fair trial. Hill v. State, 292 Ark. 144, 728 S.W.2d 510 (1987). An attorney's decision not to call a particular witness is largely a matter of professional judgment, and the fact that there was a witness or witnesses who could have offered testimony beneficial to the defense is not, itself, proof of counsel's ineffectiveness. Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to his client and in assessing the attorney's decision not to call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment that experienced advocates could endlessly debate. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001) (per curiam). The decision of whether or not to call a witness is generally a matter of trial strategy that is outside the purview of relief under Ark. R. Crim. P. 37.1, but such strategic decisions must still be supported by reasonable professional judgment, so as not to fall beyond the scope of what a competent attorney would recommend. State v. Goff, 349 Ark. 532, 79 S.W.3d 320 (2002) (per curiam).

Here, the evidence presented at the postconviction relief hearing was that both witnesses were present at the trial, and prepared to testify. Appellant's mother would have testified to his presence in her home at the time the State alleged the murder occurred, and Jerry Ellison would have testified that he had seen the murder victim after the day the State alleged the murder occurred. At the trial, two witnesses had testified that appellant was at his mother's on the day of the murder. Another witness presented at trial testified that he had seen the victim after that day. Trial counsel testified at the postconviction hearing that he recalled that the date and time of death were not firmly established, and that he believed that the jury had been presented with enough evidence to buy the alibi defense, if they were going to do so. The testimony of appellant's mother and Jerry Ellisonwould have been cumulative to that already presented. He was concerned because he believed the State's cross examination of the witnesses had been good, and that the alibi defense could be further damaged on cross if the remaining witnesses testified, particularly since the witnesses were related to appellant.

The jury was presented with evidence of appellant's alibi. Appellant has not shown that the presentation of his mother's and Jerry Ellison's testimony would have resulted in a different outcome at trial. Nor can we hold that the trial court's finding that the decision not to call the witnesses was a matter of trial strategy was clearly erroneous. Trial counsel's testimony established that his decision was supported by reasonable professional judgment and did not fall beyond the scope of what a competent attorney would recommend.

Appellant's next point alleges the trial court erred by failing to grant the continuance requested by counsel at the postconviction relief hearing. Counsel at the postconviction hearing, Mr. Young, had only entered an appearance two days prior, and indicated he had not been able to read the trial transcript. The court determined the only issue raised by the petition was that of the failure to call the two witnesses, and that appellant and his family had been late in retaining counsel for the hearing, having some three weeks notice of the date set for the hearing. The hearing was postponed for 45 minutes to allow Mr. Young to review the transcript and prepare. Once the hearing resumed, Mr. Young called the two witnesses and trial counsel to testify, and argued appellant's case for relief in a closing statement to the court.

A court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case. Ark. R. Crim. P. 27.3. Granting or denial of a motion for continuance is within the sound discretion of the trial court, and will not be reversed absent an abuse of discretion amounting to a denial of justice. Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001). An appellant must show prejudice from the denial of the continuance, and when a motion for continuance is based upon a lack of time to prepare, we will consider the totality of the circumstances, with the burden of showing prejudice upon the appellant. Id. at 173, 44 S.W.3d at 733. When deciding whether a continuance should be granted, the diligence of the movant is one factor to be considered by the court, and lack of diligence alone is sufficient cause to deny a continuance. Green v. State, 354 Ark. 210, 118 S.W.3d 563 (2003).

We do not find the court abused its discretion in this case. The court found that appellant had not been diligent, that he should have involved Mr. Young in the proceedings earlier. Moreover, appellant has failed to show how he was prejudiced by the denial of the continuance. Appellant had raised in his petition only one claim of ineffective assistance, which was based upon trial counsel's failure to call the witnesses. Following the break, Mr. Young presented his witnesses and advanced arguments based upon this issue. Appellant does not indicate that Mr. Young could have presented further evidence, or otherwise how appellant might have been affected to his disadvantage by the lack of time to prepare. Appellant has not met his burden to show prejudice.

Appellant's third point asserts the trial court failed to comply with the requirements of Ark. R. Crim. P. 37.3(c) by the omission of specific findings of fact in the order denying postconviction relief. However, as noted above, the trial court did provide written findings of fact. The order set out specifically that the court found counsel did not call the witnesses as trial strategy and tactics, and found the testimony would have been redundant to other witnesses who did testify. The order did, in fact, comply with the rule.

Appellant's last point asserts appellant was denied due process by the failure to appoint counsel for this appeal. Mr. Young, the attorney appellant retained for the postconviction relief hearing, was suspended from the practice of law and this court denied appellant's motion to compel Mr. Young to represent appellant on appeal. Ellison v. State, CR 04-723 (Ark. Sept. 23, 2004) (per curiam). Appellant subsequently filed a motion for appointment of counsel, which was denied. Ellison v. State, CR 04-723 (Ark. Dec. 9, 2004) (per curiam). There is no constitutional right to an attorney in state postconviction proceedings. Hardin v. State, 350 Ark. 299, 86 S.W.3d 384 (2002). Right to counsel ends in this state after the direct appeal of the original judgment of conviction is completed, and the State is not obligated to provide counsel in postconviction proceedings. Id. at 301, 86 S.W.3d at 385.

Appellant asserts that application of Ark. R. App. P.-Crim. 16 is mandatory. However, Ark. R. App. P.-Crim. 16 does not require that counsel be appointed for an appeal of a postconviction proceeding under Ark. R. Crim. P 37.1. If counsel were appointed, and permitted to withdraw, Ark. R. App. P.--Crim. 16 allows, but does not require, new counsel to be appointed for a proceeding under Ark. R. Crim. P 37.1. When counsel was retained, and not appointed, Rule 16 does not provide for, much less require, appointment of counsel, should an attorney be relieved. Considering the facts of this case, Rule 16 simply has no application as to the denial of postconviction relief. Appellant contends we should have required Mr. Young to retain other counsel to represent appellant. As we previously held in Ellison v. State, CR 04-723 (Ark. Sept. 23, 2004) (per curiam), this court would not compel representation by Mr. Young due to the suspension of his license. Whether there may be any contractual issues concerning Mr. Young's actions following that suspension is simply not relevant to the appropriateness of denial of postconviction relief and will not be considered or addressed by this court in this appeal. Appellant was not denied due process by bringing this appeal pro se, nor does Rule 16 require reversal.

Affirmed.