Lewis A. Brooks v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 03-538

NOT DESIGNATED FOR PUBLICATION

LEWIS A. BROOKS

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered February 17, 2005

APPEAL FROM THE CIRCUIT COURT OF CRAWFORD COUNTY, CR 2000-368, HON. FLOYD G. ROGERS, JUDGE

AFFIRMED

PER CURIAM

Lewis Albert Brooks was convicted in Crawford County Circuit Court of one count of possession with intent to deliver cocaine and one count of possession with intent to deliver marijuana. He was sentenced to forty years' imprisonment for the first charge and ten years' imprisonment for the marijuana charge, to be served consecutively. Brooks subsequently filed a petition for postconviction relief pursuant to Ark. R. Cr. P. 37.1 raising claims of ineffective assistance of counsel. The circuit court held a hearing, and issued an order denying relief. We affirm.

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. Green v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). Appellant's first three points of error are claims of ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, the claimant must show that counsel's representation fell below an objective standard of reasonableness and, but for counsel's errors, the result of the trial would have been different. Id. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000).

Appellant first contends that trial counsel was ineffective for failure to notify appellant of a suppression hearing and failure to object to the criminal trial's proceeding without the suppression hearing. While counsel did admit to failing to notify his client of the initial suppression hearing date, the suppression hearing was then rescheduled for the day of the trial. Appellant admittedly did not arrive for that hearing at the scheduled time, but the trial court found counsel had been diligent in notifying appellant of the rescheduled hearing. In making a determination on a claim of ineffectiveness, we consider the totality of the evidence before the factfinder, and we do not find that the lower court's findings on this issue were clearly against the preponderance of the evidence. Id. Appellant next asserts counsel was ineffective when he failed to investigate appellant's alibi and call Jessee Guraro and appellant's wife, Karen Brooks, as witnesses on his behalf. 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 postconviction relief. See, State v. Goff, 349 Ark. 532, 79 S.W3d 320 (2002). Counsel testified in the postconviction relief hearing that appellant had the opportunity to advise him of the witnesses and had not. The trial court included in its findings that counsel had preformed adequate preparatory work. That finding is not clearly against the preponderance of the evidence.

Furthermore, appellant has presented no evidence to show the witnesses' testimony would have changed the outcome of the trial. Appellant did not call the proposed witnesses at his postconviction relief hearing, despite having the burden of proof on the point. Id. at 538, 79 S.W.3dat 324. 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). This court does not grant postconviction relief for ineffective assistance of counsel where the petitioner fails to show what the omitted testimony or other evidence was and how it would have changed the outcome. Camargo v. State, 346 Ark.118, 55 S.W.3d 255 (2001). Appellant asserts what he contends would have been the substance of the witnesses' testimony, but did not provide support for the allegation at the postconviction hearing. An unsupported, conclusory allegation cannot form the basis for postconviction relief. Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (2002).

For his third point, appellant contends counsel was ineffective for failure to ask for a continuance rather than a mistrial upon the admission of an inculpatory statement that was not previously disclosed to appellant or counsel. Appellant cites Brooks v. State,76 Ark. App. 164, 167, 61 S.W.3d 916, 918 (2001), where the Court of Appeals stated counsel should have asked for a continuance. However, that court also found the admission of the statement was not prejudicial and that Brooks failed to show the omission undermined confidence in the outcome of the trial. Id. at 166, 61 S.W.3d 917. Here, once again, appellant has failed to demonstrate prejudice. Appellant argues that his wife could have been flown in to testify if a continuance had been granted; yet, he failed to call his wife to provide the necessary evidence of her testimony at the postconviction hearing. Again, we have only the appellant's unsupported allegations as to the evidence on this point. Accordingly, we cannot say that evidence, or a continuance to present it, would have changed the outcome of the trial.

In his argument on the third point, appellant also references a failure by counsel to file a motion alleging a violation of the right to due process as guaranteed by Brady v. Maryland, 373 U.S. 83 (1963). That contention does not lend support to his argument that counsel should have requested a continuance, and as a separate issue, was not presented in appellant's petition, so we do not address it on appeal. The general rule is that specific issues of effectiveness of counsel cannot be raised for the first time on appeal. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995).

Appellant asserts for his last point that he is actually innocent and incarceration therefore violates both the Arkansas Constitution and the United States Constitution. He bases this assertion on the argument that the witnesses' testimony described in his second point of appeal would exonerate him by bolstering his alibi. Yet, we have already determined there was no demonstration this testimony would have persuaded the jury differently, leaving appellant with no more than a direct challenge to the sufficiency of the evidence. We do not permit an appellant to rechallenge the sufficiency of the evidence at trial through an ineffective assistance of counsel claim. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). 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 judgement. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). This is clearly not an issue within the scope of relief provided by Ark. R. Cr. P. 37.1.

AFFIRMED.