Viveros v. State
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Cite as 2009 Ark. 548
SUPREME COURT OF ARKANSAS
No.
CR 07-1229
Opinion Delivered
EFRAIN VIVEROS
Appellant
November 5, 2009
PRO SE APPEAL FROM THE CIRCUIT
COURT OF CRAWFORD COUNTY, CR
2003-379, HON. GARY R. COTTRELL,
JUDGE
v.
STATE OF ARKANSAS
Appellee
AFFIRMED.
PER CURIAM
Appellant Efrain Viveros appealed his judgment of conviction, resulting from a jury trial, on
charges of possession of methamphetamine with intent to deliver, possession of drug paraphernalia, and
two counts of failure to appear. The Arkansas Court of Appeals affirmed the judgment. Viveros v. State,
CACR 06-173 (Ark. App. Mar. 14, 2007). Appellant timely filed in the trial court a pro se petition for
relief under Arkansas Rule of Criminal Procedure 37.1 that was denied, and he now appeals that
decision. We affirm the denial of postconviction relief.
Appellant raises five points on appeal. In his first point, appellant asserts ineffective assistance
of counsel on the bases that: (1) counsel did not perform an adequate investigation; (2) counsel failed
to object to the traffic stop, appellant’s detention, and appellant’s consent to search through a pretrial
suppression motion; (3) counsel failed to properly move for a directed verdict so as to preserve a
sufficiency-of-the-evidence argument for appeal; (4) counsel failed to investigate or request appointment
of a bilingual translator/investigator/co-counsel; (5) counsel failed to investigate or research treaties that
Cite as 2009 Ark. 548
would have provided a right to have the Mexican Consulate informed of his arrest and assist him. In
his second point, appellant claims that the vehicular search was unconstitutional. In his third point,
appellant asserts that the trial court abused its discretion and violated his due process rights by failing
to ensure an interpreter was provided as needed. More specifically, appellant contends that an
interpreter was needed before his trial and that the trial court erred in suppressing the evidence, when
no interpreter was present at his arrest and the trial court required an interpreter to explain the Rule 37.1
petition proceedings to appellant. In his fourth point, appellant alleged that the trial court abused its
discretion in failing to suppress the evidence at trial. In his final point, appellant asserts that the trial
court abused its discretion and that his sentence was excessive.
In his first point on appeal, appellant asserts that trial counsel was ineffective. In an appeal from
a trial court’s denial of postconviction relief on a claim of ineffective assistance of counsel, the question
presented is whether, under the standard set forth by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984), and based on the totality of the evidence, the trial court clearly erred
in holding that counsel’s performance was not ineffective. Small v. State, 371 Ark. 244, 264 S.W.3d 512
(2007) (per curiam). 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. Id.
Appellant first asserts that counsel failed to investigate, or challenge through a pretrial
suppression motion, the traffic stop, appellant’s detention, and appellant’s consent to search. He
contends that he could not have consented to the search because he could not speak English, that
further investigation would have led to the discovery that certain information was not available to the
arresting officer and that the detention exceeded fifteen minutes. The trial court found that counsel’s
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Cite as 2009 Ark. 548
pretrial investigation and research were not inadequate, noting that appellant had testified during the
hearing on his Rule 37.1 petition that he thought his attorney did a good job up until he made a
statement concerning certain jury instructions and that counsel had filed a motion to suppress.
Portions of appellant’s arguments concerning ineffective assistance on appeal, including some
aspects of his claims as to an inadequate motion for suppression and his claims as to counsel’s failure
to adequately move for a directed verdict, are not arguments presented to the trial court. Issues raised
for the first time on appeal, even constitutional issues, will not be considered because the circuit court
never had an opportunity to make a ruling. Green v. State, 362 Ark. 459, 209 S.W.3d 339 (2005). To the
extent that appellant’s argument may have been presented more generally to the court in the petition,
he was obliged to obtain a ruling on any issue to be preserved for appeal. See Howard v. State, 367 Ark.
18, 238 S.W.3d 24 (2006); Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000).
Moreover, even as to appellant’s arguments for which the court did provide a ruling, the trial
court did not clearly err in finding counsel was not ineffective. The trial record shows that trial counsel
did file a motion to suppress, did assert that appellant could not have given consent to the search, and
did assert that the stop and detention were unconstitutional. On direct appeal, the court of appeals
agreed with the trial court’s rulings that appellant did not have standing to object to the search, that the
stop and detention were warranted, and that the driver provided consent for the search.
A petitioner carries the burden to prove his allegations for postconviction relief. Cranford v.
State, 303 Ark. 393, 797 S.W.2d 442 (1990); Porter v. State, 264 Ark. 272, 570 S.W.2d 615 (1978) (holding
under prior law). Counsel is presumed effective and allegations without factual substantiation are
insufficient to overcome that presumption. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001) (per
curiam); see also State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007). Here, appellant failed to present facts
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Cite as 2009 Ark. 548
to show that counsel did not contest appellant’s consent to the search or that the stop and detention
were unlawful. Counsel, in fact, did so and was not successful.
Next, appellant alleges that trial counsel was deficient because he did not use a bilingual
investigator or co-counsel or investigate the possibility of having the Mexican Consulate provide such
services. As the trial court found, appellant did not demonstrate any facts to show that he was
prejudiced by the alleged error.
Actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general
requirement that the defendant affirmatively prove prejudice. State v. Barrett, 371 Ark. 91, 263 S.W.3d
542 (2007). Under the Strickland test, a claimant must show that counsel's performance was deficient,
and the claimant must also show that this deficient performance prejudiced his defense so as to deprive
him of a fair trial. Walker v. State, 367 Ark. 523, 241 S.W.3d 734 (2006) (per curiam). As to the prejudice
requirement, a petitioner must show that there is a reasonable probability that the fact-finder’s decision
would have been different absent counsel’s errors. Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277
(2008). A reasonable probability is a probability sufficient to undermine confidence in the outcome of
the trial. Id.
Here, the trial court found that trial counsel had used interpreters in communicating with
appellant before trial, either relatives or interpreters available through the Administrative Office of the
Courts, and that appellant did not offer any evidence that might have been discovered and presented
at trial, if an investigator had been retained. We agree that appellant did not demonstrate that he was
prejudiced by any error in this regard.
Appellant’s remaining arguments, to the extent those claims were raised below, do not raise
claims of ineffective assistance of counsel. Rather, those claims are based upon allegations of trial error.
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Cite as 2009 Ark. 548
Postconviction proceedings under Rule 37.1 do not permit a petitioner to raise questions that might
have been raised at the trial or on the record on direct appeal, unless they are so fundamental as to
render the judgment void and open to collateral attack. Davis v. State, 345 Ark. 161, 44 S.W.3d 726
(2001). Of these last claims, only petitioner’s final claim, that his sentence was excessive, is the type of
error to fall within the exception.
As the State points out in its brief, appellant did not include this claim in his petition. To some
extent, it was raised during the postconviction hearing, but the trial court did not provide a ruling on
the issue. Accordingly, the issue is not preserved. Johnson v. State, 2009 Ark. 460, ___ S.W.3d ___ (per
curiam).
Appellant failed to demonstrate error by the trial court. The denial of postconviction relief is
therefore affirmed.
Affirmed.
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