Sparks v. State
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ARKANSAS SUPREME COURT
No.
CR 08-550
Opinion Delivered
STEVEN SPARKS
Appellant
May 7, 2009
APPEAL FROM THE CIRCUIT COURT
OF WASHINGTON COUNTY, CR
2004-323, HON. WILLIAM A.
STOREY, JUDGE
v.
STATE OF ARKANSAS
Appellee
AFFIRMED.
PER CURIAM
In 2005, a jury found appellant Steven Sparks guilty of three counts of rape and three counts
of terroristic threatening and sentenced him to an aggregate term of 552 months’ imprisonment. The
Arkansas Court of Appeals affirmed. Sparks v. State, CACR 05-600 (Ark. App. Jun. 27, 2007).
Through counsel, appellant filed in the trial court a petition for postconviction relief under Arkansas
Rule of Criminal Procedure 37.1 that was denied. He now brings his appeal of the order denying
postconviction relief.
Appellant raises five points of error on appeal. In the first four points, appellant alleges that
the trial court erred in failing to find ineffective assistance of counsel. He first asserts ineffective
assistance by counsel’s failure to object to restraints at trial or request a jury instruction as to the
restraints. Next, appellant asserts ineffective assistance by counsel’s failure to investigate and
subpoena witnesses. Appellant’s third point asserts ineffective assistance by counsel’s failure to
investigate and seek a cure for discovery issues as to missing portions of video tapes of the victims.
Appellant’s last claim of ineffective assistance asserts counsel’s failure to investigate the law and
act appropriately concerning speedy trial and other procedural issues involving appellant’s
incarceration in another state, the power to subpoena witnesses who were out of state, and procedure
as to a motion for directed verdict. In appellant’s last point on appeal, he asserts error in the trial
court’s failure to consider a motion to submit an amended extended petition.
We note initially that appellant’s brief is deficient, in that he fails to abstract the testimony
from the trial record. In determining a claim of ineffective assistance of counsel, the totality of the
evidence before the factfinder must be considered. Greene v. State, 356 Ark. 59, 146 S.W.3d 871
(2004). In addition, appellant raises a claim concerning sufficiency of the evidence at trial through
his allegations concerning a directed verdict. Under other circumstances, we would order appellant
to submit a compliant brief in accord with Arkansas Supreme Court Rule 4-2(b)(3). We do not order
rebriefing, however, as it is clear here that our analysis of appellant’s points on appeal do not require
reference to the record. Moreover, we need not resort to the trial record when addressing appellant’s
sufficiency-of-the-evidence challenge because the court of appeals’ decision on direct appeal
includes a summary of the evidence introduced at trial.
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.
A petitioner making a claim of ineffective assistance must first show that counsel made errors
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so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth
Amendment. Harrison v. State, 371 Ark. 474, 268 S.W.3d 324 (2007). In doing so, the claimant
must overcome a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance. Id. As to the second prong of the test, the 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, ___ S.W.3d ___ (2008). A reasonable probability is a
probability sufficient to undermine confidence in the outcome of the trial. Id.
In appellant’s first point on appeal, he alleges ineffective assistance of counsel based upon
trial counsel’s failure to object to appellant’s restraints at trial or to request a jury instruction
concerning the restraints.
We do not reach the merits of the claim. The record from the
postconviction proceedings does not indicate that the issue was argued below and the trial court
clearly did not provide a ruling on the issue in its order. This court has repeatedly stated that we will
not address arguments, even constitutional arguments, raised for the first time on appeal. Dowty v.
State, 363 Ark. 1, 210 S.W.3d 850 (2005); see also Standridge v. State, 357 Ark. 105, 161 S.W.3d
815 (2004). 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).
In appellant’s second point on appeal, he alleges ineffective assistance because trial counsel
failed to investigate and subpoena witnesses. The trial court found that trial counsel had not
subpoenaed or called certain witnesses, that the decision not to call the witnesses was based upon
counsel’s professional judgment that the testimony would not have been beneficial to the defense,
and that the decision did not fall below an objective standard of reasonableness. The trial court
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further found that, as to each alleged error asserted, appellant had failed to demonstrate that there
was a reasonable probability that the result of the proceedings would have been different absent the
error.
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 that
denied the petitioner a fair trial. Hill v. State, 292 Ark. 144, 728 S.W.2d 510 (1987). 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). On appeal, appellant
contends that counsel did not exercise diligence in investigating the potential witnesses or the
procedures to obtain testimony from those potential witnesses who were not within the state. We
cannot say the trial court clearly erred in determining that appellant failed to establish actual
prejudice.
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). 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. Rankin
v. State, 365 Ark. 255, 227 S.W.3d 924 (2006). It is incumbent on a petitioner to name the witness,
provide a summary of the testimony, and establish that the testimony would have been admissible
into evidence. Harris v. State, ___ Ark. ___, ___ S.W.3d ___ (Jun. 26, 2008) (citing Weatherford
v. State, 363 Ark. 579, 586, 215 S.W.3d 642, 649 (2005) (per curiam)).
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Although appellant asserts that a number of witnesses were identified for counsel that could
have been interviewed and that testimony from those witnesses would have been beneficial, he did
not call those witnesses at the postconviction relief hearing or offer evidence as to what testimony
would have been provided at trial. Appellant failed to demonstrate that any of the witnesses that he
alleged counsel should have investigated and called at trial would have provided admissible evidence
sufficient to meet his burden to show a reasonable probability that the fact-finder’s decision would
have been different. Appellant provided only conclusory statements that the testimony would have
been key to his defense, without a demonstration as to the testimony that would have been available.
Conclusory statements cannot be the basis of postconviction relief. Id.; Jackson v. State, 352 Ark.
359, 105 S.W.3d 352 (2003).
Appellant next contends trial counsel was ineffective for failure to investigate and seek a cure
for discovery issues as to missing portions of video tapes of the victims. The State asserts that
appellant did not include the claim in his petition or receive a specific ruling as to the issue, although
the issue was raised during the proceedings and the trial court did find that counsel requested and
was provided full and complete discovery. In any event, as with the previous claim, it is evident that
appellant made no demonstration of prejudice. The record contains only conclusory allegations that
counsel could have discovered information that would have enabled a more effective confrontation
of the witnesses. Appellant never identifies any such information or explains how the witnesses
could have been better cross-examined.
As to appellant’s final claim of ineffective assistance, that counsel failed to investigate the
law and act appropriately concerning speedy trial and other procedural issues involving appellant’s
incarceration in another state, the power to subpoena witnesses who were out of state, and procedure
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as to a motion for directed verdict, appellant again failed to carry his burden to show prejudice.
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 argues that counsel did not adequately research issues concerning his right to be
brought to trial within 180 days after appellant filed notice under the Interstate Agreement on
Detainers, Arkansas Code Annotated § 16-95-101 (Repl. 2006). He asserts prejudice because he was
not brought to trial within that time frame. However, the time limits are tolled during periods when
the prisoner is removed from the custodial place of incarceration to a place other than the demanding
jurisdiction. Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983). There was testimony at the
postconviction relief hearing that appellant was in another state for a period of time. We cannot say
that the trial court clearly erred in finding that appellant failed to show prejudice under the
circumstances.
Appellant additionally argues that trial counsel failed to research potential issues concerning
compliance by the prosecutor with Arkansas Rule of Criminal Procedure 29.1 as to promptly filing
for a detainer. He asserts that the State failed to show compliance with the rule. The burden is not
upon the State to demonstrate compliance. Rather, appellant carried the burden to show that any
objection would have been meritorious. Trial 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). As to these
claims, and, as previously discussed as to appellant’s claim concerning witnesses, appellant clearly
failed to demonstrate the alleged errors resulted in prejudice.
As to the last subpoint within this claim, that counsel failed to research the law as to a motion
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for directed verdict, appellant argues that application of the standard in United States v. Cronic, 466
U.S. 648 (1984), is appropriate. The presumption-of-prejudice exception to Strickland is recognized
in very few cases, which fall within one of three categories, as follows: (1) where assistance of
counsel has been denied completely during a critical stage of the proceedings; (2) where counsel
entirely fails to subject the prosecution’s case to meaningful adversarial testing; (3) where counsel
is called upon to render assistance under circumstances where competent counsel very likely could
not. See Bell v. Cone, 535 U.S. 685 (2002). It is not apparent how the situation here falls within one
of these categories and appellant does not develop any argument as to how the circumstances fit.
This court will not research and develop arguments for appellants. Williams v. State, 371 Ark. 550,
268 S.W.3d 868 (2007).
Here, appellant did not demonstrate that, had counsel moved for directed verdict, the motion
should have been granted. As the court of appeals noted in the opinion on direct appeal, appellant’s
daughter, step-daughter, and son, each testified about being raped by appellant years before and
about his threats against them and their mother. Appellant made no showing that the evidence
presented against him was not sufficient and the trial court did not clearly err in finding that there
was sufficient evidence to support the verdict or that appellant failed to satisfy the second prong of
the Strickland test.
Finally, appellant alleges error by the trial court for failure to consider his motion to submit
an extended petition and to provide a ruling on the issues raised in the motion. The trial court
appears to have considered the motion when appellant raised his concerns in the hearing, but found
that the issues raised in the motion were cumulative.
We review a circuit court’s denial of leave to amend a Rule 37.1 petition by an abuse-of-7-
discretion standard. Butler v. State, 367 Ark. 318, 239 S.W.3d 514 (2006) (per curiam). We
determine whether the trial court’s decision was arbitrary or groundless. Id. Here, it was not clear
that the proposed amendment was denied, but to the extent that it was denied, the denial was not
groundless. The issues raised in the motion concerned discovery and the allegedly missing audio
from video tapes of the victim’s statements, while the petition raised only broad claims of failure to
investigate. The issues in the motion were more specific, but, as discussed in the previous point, the
trial court’s order did appear to address the issues. As already noted, it is the petitioner’s burden to
obtain a ruling on any omitted issue, in any case.
Affirmed.
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