George Aydelotte v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-822

NOT DESIGNATED FOR PUBLICATION

GEORGE AYDELOTTE

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered November 10, 2005

APPEAL FROM THE CIRCUIT COURT OF CONWAY COUNTY, CR 2001-168-B, HON. PAUL DANIELSON, JUDGE

AFFIRMED

PER CURIAM

George Aydelotte was found guilty by a jury of manufacturing a controlled substance, possession of a controlled substance, use of a communications facility, and simultaneous possession of drugs and firearms. He received an aggregate sentence of twenty years' imprisonment. The court of appeals affirmed. Aydelotte v. State, 85 Ark. App. 67, 146 S.W.3d 392 (2004). Aydelotte filed a timely petition pursuant to Ark. R. Crim. P. 37.1 seeking to vacate the judgment. The petition was denied without a hearing. Aydelotte now brings this appeal of the denial of postconviction relief by the trial court.

Appellant Aydelotte raises two points on appeal: (1) that the trial court erred in denying the petition without a hearing; (2) that the trial court erred in failing to find trial counsel was ineffective. Within his second point, appellant alleges the trial court should have found counsel was ineffective for (1) failure to argue the affidavit for a search warrant did not contain adequate reference to the time of the occurrence of the illegal activity; (2) failure to argue that there was not probable cause to support issuance of the search warrant; (3) failure to argue that enhancement under Ark. Code Ann. § 5-64-418 (Supp. 2003) was not supported by the evidence; (4) failure to argue that the affidavit for the search warrant contained false information; (5) failure to argue that the magistrate was not appointed in accord with Amendment 80 to the Arkansas Constitution; (6) failure to request a hearing on the issue of the false information alleged in the affidavit for the search warrant; and (7) failure to argue appellant was denied equal protection because he was not transferred to drug court. As the record before us fails to show appellant's petition provided a basis for postconviction relief, we must accordingly affirm the denial of his petition under Ark. R. Crim. P. 37.1.

Appellant first asserts that the trial court should not have dismissed his petition without conducting a hearing. An evidentiary hearing should be held in a postconviction proceeding unless the files and the records of the case conclusively show that the prisoner is entitled to no relief. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003). The trial court has discretion pursuant to Ark. R. Crim. P. 37.3(a) to decide whether the files or records are sufficient to sustain the court's findings without a hearing. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). Arkansas Rule of Criminal Procedure 37.3(a) provides, "If the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court's findings." If the trial court fails to make findings as required by Ark. R. Crim. P. 37.3(a), it is reversible error, unless the record before this court conclusively shows that the petition was without merit. Carter v. State, 342 Ark. 535, 538, 29 S.W.3d 716, 718 (2000) (per curiam). The trial record was abstracted, and as public record already filed with the appellate court in the earlier appeal, need not be incorporated to form a part of the record before us. Drymon v. State, 327 Ark. 375, 938 S.W.2d 825 (1997) (per curiam). The State argues that the record here does conclusively show that the petition was without merit, and we agree.

Appellant's petition set forth his claims of ineffective assistance of counsel. The criteria for assessing the effectiveness of counsel are set out in Strickland v. Washington, 466 U.S. 668 (1984). The claimant must show first 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. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Greene, 356 Ark. at 64, 146 S.W.3d at 876.

Because a petitioner claiming ineffective assistance of counsel must show prejudice, where he asserts error for failure to raise an argument, he must make a showing that the argument would have been successful, in order to rebut the presumption that counsel's conduct was reasonable, and show that the argument, if made, would have been sufficient to undermine confidence in the outcome of the trial. Trial counsel is not ineffective for failing to make an argument that is meritless, either at trial or on appeal. Id. at 73, 146 S.W.3d at 882; Camargo v. State, 346 Ark. 118, 128, 55 S.W.3d 255, 262-263 (2001). As to each of the arguments that appellant asserts counsel failed to raise, appellant has failed to show the argument would have been successful.

Appellant's first claim of ineffective assistance asserted error in that counsel did not challenge the affidavit supporting the search warrant for failure to state a sufficiently specific time at which the illegal activity was to occur, as required by Ark. R. Crim. P. 13.1. A review of the contents of the affidavit clearly shows that it did establish when the illegal activity of methamphetamine manufacture would occur. The two informants referenced in the affidavit each provided information that, on August 30, 2001, at about 9:30 p.m., they saw Jeremy Bearden at his home with a bag of crushed pseudoephedrine tablets, and that he indicated appellant was going to pick him up, and they would then go to appellant's home in Oppelo and "cook" the methamphetamine throughout the nighttime hours on that date. As the State notes, these references to time are explicit. This information clearly did establish with sufficient particularity the time when the illegal activity was to occur.

Appellant next argues that trial counsel erred in failing to challenge the search warrant for lack of probable cause. In his petition, appellant only argued that insufficient facts were presented in the affidavit to constitute probable cause and that facts to support the need for a nighttime search were not provided. In his brief, appellant appears to contend the statements by the informants were not adequately substantiated. This court has repeatedly stated that we will not address arguments, even constitutional arguments, raised for the first time on appeal. Dowty v. State, ___ Ark. ___, ___ S.W.3d ___ (June 23, 2005). See also Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004). In response to the State's argument on the last point, appellant also attempts to challenge the sufficiency of the corroboration for the confidential informant's information in his reply brief. We do not address the merits of a question where the argument is raised for the first time in a reply brief. State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000). Furthermore, the issue before us is whether or not appellant's petition was without merit. Accordingly, we do not address corroboration or other additional issues raised for the first time on appeal, and limit our review to the argument as raised in appellant's petition and amendment.

The affidavit recited that the confidential informants had given information that Bearden showed them the bag of crushed pills and told them he was going to go with appellant to appellant's home to manufacture methamphetamine. A police officer observed appellant arrive at Bearden's house, and leave with someone. Another officer later confirmed that appellant's vehicle was at his home. These facts were sufficient to establish probable cause for the magistrate to determine that illegal activity, the manufacture of methamphetamine, was to occur at appellant's home. It was not necessary for the affidavit to indicate further that Bearden actually arrived at appellant's home, or that he carried the crushed pills with him, or that anyone observed appellant begin to manufacture the methamphetamine, because Bearden had already stated his intentions to the informants.

As to facts necessary to establish the need for a nighttime search, the affidavit contained facts to support a finding that the place to be searched was difficult of speedy access, in accordance with Ark. R. Crim. P. 13.2(c)(I). In addition, the affidavit contained facts that support findings under both Ark. R. Crim. P. 13.2(c)(ii) and Ark. R. Crim. P. 13.2(c)(iii), because those facts raise an inference that the objects to be seized were in danger of imminent removal and that the warrant could only safely be executed at night.

The affidavit indicated that the residence and outbuildings where the "cook" was to occur were the only structures at the end of a long driveway. The affidavit further indicated both safe and speedy access would be hampered by the fact that there were woods around the property. The information from the confidential informants was that the manufacturing process would be done overnight. Appellant argues that the statements in the affidavit that the components of the manufacturing process were in danger of being disassembled and removed from the location were conclusory. However, common sense dictates that, once the process was complete, the product produced and components of the process might be moved. Indeed, Bearden was to bring one of the components to appellant's home so that the manufacturing could take place. These facts were sufficient to support issuance of the warrant, and appellant has failed to show the argument would have resulted in suppression of the evidence.

In his third allegation of error by trial counsel, appellant contends trial counsel should have challenged the sufficiency of the evidence for application of Ark. Code Ann. § 5-64-418 (Supp. 2003) because his children were in a trailer approximately thirty-five yards from the outbuilding where the drug manufacturing took place and where appellant was at the time of his arrest. The statute provided for an enhanced sentence for persons convicted of the manufacture of methamphetamine or possession of drug paraphernalia with the intent to manufacture methamphetamine, if the offense is committed "with a minor child or children present in the same immediate area or in the same vehicle at the time of the person's arrest for the offense." Appellant argued in his petition that the facts of his case did not fit within the parameters of the statute, and his attorney should have raised that issue. He also argues that counsel should have raised a constitutional issue challenging the statute as vague.

Had counsel objected to application of the statute, appellant has not shown that the argument would have been successful. Appellant asserts that the children could not have been in the "immediate area" at the time of appellant's arrest. Where the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction, and we may construe it giving the words their ordinary and usually accepted meaning in common language. Bowker v. State, ___ Ark. ___, ___ S.W.3d ___ (Sept. 29, 2005). One of appellant's co-defendants, who was also convicted of manufacturing methamphetamine and was arrested on that charge at the same time as appellant, testified that appellant was responsible for care of the children that night. The co-defendant also testified that he had been checking on the children for appellant at the time of his arrest and was on his way to report to appellant about them. The State also points to testimony indicating that there was danger of an explosion that could have leveled the barn next to the outbuilding where the methamphetamine was manufactured. Taking this testimony into account, it is clear that under the circumstances, a distance of thirty-five yards was not far. There was ample evidence for the jury to conclude the children were near at hand to appellant when the arrest was made. There was evidence presented that they were close enough for appellant to be minding them with his co-defendant's assistance, that he could have easily and quickly reached them had he not been occupied with the process of manufacturing methamphetamine, and that they were close enough to be in danger from the activity appellant was pursuing. Clearly there was sufficient evidence to support the jury's finding that the children were in the immediate area, and appellant has not shown that the trial court would have ruled in appellant's favor if counsel had raised the argument.

As to appellant's constitutional argument that the statute was vague, appellant would have had no standing to challenge the statute, and counsel could not, therefore, have been ineffective for failure to raise the issue. The constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute's applicability to the facts at issue. Reinert v. State, 348 Ark.1, 71 S.W.3d 52 (2002). When challenging the constitutionality of a statute on grounds of vagueness, the individual challenging the statute must be one of the "entrapped innocent" who have not received fair warning; if by his action, that individual clearly falls within the conduct proscribed by the statute, he cannot be heard to complain. Id. at 5, 71 S.W.3d at 54. Appellant was manufacturing methamphetamine, and under the plain meaning of the term "immediate area," his children were in the immediate area at the time of his arrest.

Appellant raises two separate points in his brief on appeal concerning the affidavit for the search warrant containing false information. The second one only carries the first argument further by more specifically indicating that a hearing should have been requested when raising the argument. However, appellant has added additional claims of false information in his first point to those in his petition. Only two instances of false information were set out in his petition and amendments, that the description of the property was false as to the length of the driveway and as to the surrounding woods, and that the information concerning the number of controlled drug purchases by the confidential informant was not correct, and therefore we address only those two issues.

Appellant contends that the description of the property was falsely supportive of the nighttime search, in that it indicated that the property was surrounded by woods and that the driveway was an eighth of a mile long. Appellant contends that the property is not completely surrounded by woods and the drive was only 350 feet long. Appellant alleges the statements concerning the description of the property constitute a violation under Franks v. Delaware, 438 U.S. 154 (1978). Franks stands for the proposition that the search warrant should be invalidated if a defendant shows by a preponderance of the evidence that (1) the affiant for a search warrant made a false statement knowingly and intelligently, or with reckless disregard of the truth, and (2) with the affidavit's false material set aside, the affidavit's remaining content is insufficient to establish probable cause. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001). The discrepancies between the information in the affidavit and what appellant asserts is the truth are simply not so significant as to show, as appellant appears to contend, satisfaction of the first requirement of the Franks test.

"Truthful" does not mean that every fact must be necessarily correct, but the affidavit must be "truthful" in the sense that the information is believed or appropriately accepted by the affiant as true. Hester v. State, ___ Ark. ___, ___ S.W.3d ___ (May 19, 2005). Appellant has not shown that his drive was so short that the affiants should have realized the statement was false or that the length would not hinder speedy access, only that the estimate of its length contained in the affidavit was not accurate. And, while appellant's property may not have been completely surrounded by woods, there were woods behind the outbuilding through which one group of officers approached for the search. While the statement in the affidavit may not have been entirely correct, we cannot say it was misleading, or that appellant has shown any indication that the affiants made the incorrect statement "knowingly and intentionally or in reckless disregard of the truth."

As for the number of controlled drug purchases that the confidential informant had made, the statement in the affidavit that one informant had provided information that resulted in five controlled drug purchases was correct, based upon the testimony at the suppression hearing. Officer Mike Smith testified that he was aware of two controlled drug purchases with the confidential informant in his past dealings with him and that Police Chief Bill Hartman was aware of the remainder of the five controlled purchases. Chief Hartman testified to three controlled drug purchases on information from the confidential informant and one weapons purchase. Both Officer Smith and Chief Hartman were affiants for the affidavit. Appellant has not shown that the statement was false.

Appellant next asserts that trial counsel should have challenged the magistrate's appointment. Counsel did make a statutory challenge to the authority of the magistrate to issue the warrant, and that issue was decided in the court of appeals' opinion on direct appeal. Aydelotte, 85 Ark. App. at 74-76, 146 S.W.3d 397-398. The court of appeals held that even had the magistrate been a de facto magistrate as appellant alleged, any challenge to his authority must be through a direct challenge. Appellant contends that counsel should have made the constitutional argument regarding assignment, and in his brief, contends trial counsel should have brought the required direct proceeding against the magistrate to do so. He argues that by so failing to preserve this argument for appeal, counsel was ineffective. Yet, appellant does not demonstrate, even were counsel to have brought a separate proceeding and successfully challenged the magistrate's authority, how that decision would have been applicable to invalidate the search warrant or change the outcome of his trial. Appellant has failed to show how he was prejudiced by such an error, or that the argument would have been successful.

Appellant's last allegation of ineffective assistance in his brief concerns appellant's assertion that trial counsel should have argued appellant would be denied equal protection if he was not transferred to drug court. The State's response is that the act establishing the drug court programs in Arkansas, the Arkansas Drug Court Act of 2003, did not become effective until almost a year after appellant's conviction. Appellant contends the program was nevertheless available elsewhere at the time of his conviction. Appellant, however, has not named a location where these programs were available, provided the criteria for acceptance into that program, or otherwise pleaded facts that would be sufficient to establish that appellant would have qualified for an available program and that counsel could have prevailed on this argument, if raised. Moreover, the argument would have certainly been a novel one, and counsel cannot be deemed ineffective for not raising every novel issue that might conceivably be raised. Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001).

Appellant raised two arguments for the trial court's consideration that he does not argue on appeal. We address those issues, although not argued, because we must determine the petition was without merit. In one, appellant asserted that counsel should have argued for alternative application of parole rules to his sentence. A question of how much time an inmate must serve before becoming eligible for parole is not a proper matter to be considered in a petition for postconviction relief. Wells v. State, 279 Ark. 55, 648 S.W.2d 466 (1983). The other argument appellant raised below was that counsel was ineffective for failing to file a motion to reveal the identities of the confidential informants. Trial counsel did, however, include a request for that information in his motion for discovery. The record before us conclusively shows that each of appellant's arguments in the petition were without merit. Because those arguments were without merit, the trial court did not err in determining that trial counsel was not ineffective and in denying postconviction relief without a hearing. We find no reversible error and affirm the denial of postconviction relief.

Affirmed.