White v. State
Annotate this Case
Download PDF
ARKANSAS SUPREME COURT
No.
CR 08-45
Opinion Delivered
ANTHONY D. WHITE
Appellant
April 23, 2009
PRO SE APPEAL FROM THE
CIRCUIT COURT OF GRANT
COUNTY, CR 2005-85, HON.
PHILLIP H. SHIRRON, JUDGE
v.
STATE OF ARKANSAS
Appellee
AFFIRMED.
PER CURIAM
A jury convicted appellant Anthony D. White of possession of cocaine, simultaneous
possession of drugs and firearms, and possession of a firearm by a felon and sentenced him as an
habitual offender to an aggregate term of 1320 months’ imprisonment in the Arkansas Department
of Correction. The Arkansas Court of Appeals affirmed. White v. State, CACR 06-799 (Ark. App.
Apr. 25, 2007). Appellant timely filed in the trial court a petition for postconviction relief under
Arkansas Rule of Criminal Procedure 37.1, which was denied. Appellant filed in this court a motion
for belated appeal of the order denying postconviction relief that we granted. White v. State, 373
Ark. 415, ___ S.W.3d ___ (2008) (per curiam). The parties have now filed their briefs and the
matter is before us.
Appellant raises six points on appeal, as follows: (1) the trial court erred in determining trial
counsel was not ineffective for failing to move for suppression of the evidence due to the fact that
appellant had not been tried on charges of speeding and driving on a suspended license; (2) the trial
court erred in determining that trial counsel was not ineffective for failure to investigate defective
record keeping concerning suspension of appellant’s driver’s license; (3) the trial court erred in
determining that trial counsel was not ineffective for failure to challenge the basis for an inventory
search that resulted in discovery of the weapon at issue; (4) the trial court erred in failing to find that
running the sentences on each of the charges consecutively violated the prohibition against double
jeopardy; (5) the trial court erred in failing to find that one of the convictions used for purposes of
enhancement was invalid; (6) the trial court erred by failing to provide an order that adequately
identified the portions of the record relied upon to support its findings. The trial court found that the
issues concerning the searches should have been resolved at trial and the court of appeals upheld the
searches as valid, that consecutive sentences did not violate double jeopardy requirements, and that
any claims concerning record keeping were invalid.
This court does not reverse a denial of postconviction relief unless the trial court’s findings
are clearly erroneous. Davis v. State, 366 Ark. 401, 235 S.W.3d 902 (2006) (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. Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007) (per curiam).
Appellant’s first three points allege ineffective assistance of counsel. 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, 371 Ark. at
250, 264 S.W.3d at 515. Under the Strickland test, a claimant must show that counsel's performance
-2-
was deficient, and the claimant must also show that this deficient performance prejudiced his defense
through a showing that petitioner was deprived of a fair trial. Walker v. State, 367 Ark. 523, 241
S.W.3d 734 (2006) (per curiam).
Each of appellant’s claims of ineffective assistance fails because appellant does not
demonstrate that, had trial counsel not committed the alleged error, had he raised the objections or
conducted an investigation as appellant asserts counsel failed to do, any prejudice would have
resulted. 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). Appellant must have alleged in the petition that counsel should have
presented meritorious objections, because counsel is not ineffective for failing to make an argument
that is meritless. Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001). 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).
Appellant’s first claim of ineffective assistance alleged that counsel did not move to suppress
the evidence on the basis that appellant had not been tried on charges of speeding and driving on a
suspended license. Appellant asserted in his petition that counsel should have made an argument
for suppression based upon a theory that the traffic stop was pretextual and without probable cause
because appellant would not have been found guilty if tried on the traffic charges. Whether a police
officer has probable cause to make a traffic stop does not depend on whether the driver was actually
guilty of the violation which the officer believed to have occurred. Stokes v. State, ___ Ark. ___,
___ S.W.3d ___ (Jan. 22, 2009). Appellant’s proposed argument for suppression was without merit.
For similar reasons, appellant’s second argument fails. Had counsel investigated the
-3-
allegedly defective record keeping concerning appellant’s suspended license, any evidence produced
would not have affected the outcome of the suppression hearing because the accuracy of that
information had no bearing upon the issue of probable cause for the traffic stop. Appellant’s petition
failed to set forth factual substantiation to demonstrate prejudice.
In appellant’s third claim of ineffective assistance, he again failed to demonstrate prejudice
because he did not identify a basis upon which counsel might have successfully challenged the
inventory search. Although appellant contends the search was conducted on the basis of his consent
and argues the search should only have been conducted at the site of his arrest, he admits that the
testimony was that the search was conducted as an inventory search following appellant’s arrest by
the officer at the wrecking yard where appellant’s car was towed. Appellant asserts that had counsel
been aware that the search was conducted after his arrest, he could have sought to suppress the
evidence discovered. But, a police officer may conduct a warrantless inventory search of a vehicle
that is being impounded in order to protect an owner’s property while it is in the custody of the
police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from
danger. Benson v. State, 342 Ark. 684, 30 S.W.3d 731 (2000). Appellant’s petition did not identify
a meritorious basis upon which counsel might have challenged the inventory search.
Next, appellant asserts error because the trial court did not find his consecutive sentences
violated the prohibition against double jeopardy. Appellant concedes that he could be convicted of
all three charges, but argues that to run the sentences consecutively rather than concurrently violates
the prohibition against double jeopardy because the charges have an element in common. The
imposition of consecutive sentences, however, does not place a defendant in double jeopardy.
Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980).
-4-
We need not address appellant’s claim that the trial court erred in failing to determine that
postconviction relief was warranted based upon the use of a conviction that was later overturned for
enhancement purposes because appellant failed to receive a ruling as to that issue. An appellant has
an obligation 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, we
note that, for purposes of sentence enhancement, a conviction is final when the judgment is
pronounced. Birchett v. State, 291 Ark. 379, 724 S.W.2d 492 (1987).
In appellant’s final point on appeal, he contends the trial court failed to comply with
Arkansas Rule of Criminal Procedure 37.3(a) in that the order did not sufficiently identify the
portions of the record relied upon. Although brief, the order did point to the portions of the record
relied upon for the basis of each ruling. In any case, as we have now addressed each of appellant’s
claims in the petition, it is clear that the petition was without merit. This court will affirm the denial
of a Rule 37.1 petition notwithstanding the circuit judge’s failure to make written findings where it
can be determined from the record that the petition is wholly without merit or where the allegations
in the petition are such that it is conclusive on the face of the petition that no relief is warranted.
Reed v. State, 375 Ark. 277, ___ S.W.3d ___ (2008). We therefore affirm the trial court’s denial of
postconviction relief in this case.
Affirmed.
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
