Bowerman v. State

2015 Ark. 350, 470 S.W.3d 267, 2015 Ark. LEXIS 559
CourtSupreme Court of Arkansas
DecidedOctober 1, 2015
DocketCR-14-640
StatusPublished
Cited by4 cases

This text of 2015 Ark. 350 (Bowerman v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowerman v. State, 2015 Ark. 350, 470 S.W.3d 267, 2015 Ark. LEXIS 559 (Ark. 2015).

Opinion

PER CURIAM

| ^Appellant Arbury Charles Bowerman brings this appeal from the denial of his petition seeking postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2014). He fails to demonstrate clear error, and we affirm the order denying relief.

In 2012, Bowerman was convicted of aggravated robbery, residential burglary, and third-degree battery, and he was sentenced to an aggregate term of 540 months’ imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed the judgment. Bowerman v. State, 2014 Ark. App. 221, 2014 WL 1396668.

The evidence presented at trial was that at least three masked men entered Larry Brown’s home during the early morning hours on August 28, 2011. The men demanded money and property, then held Brown’s family in the house while two of them accompanied Brown to a shed to look for valuables. Brown got away, scuffled with the men, biting one on the hand, and eventually returned to the house. The men fled before the police arrived. Brown testified that he had gotten something in his mouth when he bit one of the intruders, and he said that he spat |2it into a plastic baggie and gave it to the police. DNA testing indicated that the material in the baggie contained a mixture of Brown’s and Bowerman’s DNA. On appeal, Bow-erman unsuccessfully challenged the admission of the lab reports.

Bowerman filed a timely Rule 37.1 petition in the circuit court in which he raised a number of claims alleging ineffective assistance of both trial and appellate counsel. The State filed a general denial of the petition in response. The court denied the petition, finding that a hearing was not necessary because it could determine from a review of the files and record of the case that the petition was without merit. The order listed the claims from the petition and then addressed allegations concerning deficient performance by the trial attorney and counsel on appeal that were contained in the claims. The court found that Bow-erman’s allegations were conclusory; that, although Bowerman contended trial counsel should have adopted a different trial strategy, Bowerman failed to identify an alternate strategy or theory of the case to explain the evidence; and that Bowerman did not allege facts to support a finding of prejudice for the claims. The order also pointed to specific evidence offered at trial in support of the judgment, and the court found that Bowerman had not met his burden to demonstrate ineffective assistance.

This court will not reverse the trial court’s decision granting or denying post-conviction relief unless it is clearly erroneous. Houghton v. State, 2015 Ark. 252, 464 S.W.3d 922. 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.

|aOn appeal, Bowerman raises three points alleging error. Bowerman first alleges that the circuit court erred in failing to appoint counsel to represent him in the Rule 37.1 proceedings. Next, Bowerman alleges that the court did not address the claims in the petition and that it was error to deny the petition with no more than a general denial from the State. Finally, Bowerman alleges error in the denial of the petition without a hearing.

Bowerman’s first point is based on his contention that the circuit court was required to appoint counsel to represent him for the Rule 37.1 proceedings. Bow-erman asserts that it was error for the court not to appoint counsel because he was entitled to counsel under the United States Supreme Court’s holdings in Martinez v. Ryan, — U.S. —, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) and Trevino v. Thaler, — U.S.—, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). Those decisions, however, do not dictate that counsel must be appointed in postconviction proceedings. Manda v. State, 2015 Ark. 115, 459 S.W.3d 259. Moreover, Bowerman did not cite the cases in his request for counsel or make an argument that counsel was required. Instead, he indicated that appointment of counsel was discretionary under Arkansas Rule of Criminal Procedure 37.3(b). The argument Bowerman now makes was not before the circuit court and was not preserved for appeal. See Watson v. State, 2014 Ark. 203, 444 S.W.3d 835 (holding that, where only a general request for counsel was made below, the argument that appointment of counsel was required under Martinez raised the issue for the first time on appeal and was therefore not preserved for appeal).

Bowerman next contends that it was error for the circuit court to dispose of his petition using an analysis of his claims that was not proposed by the State in its response and that this independent analysis was inappropriate. The State is not, however, required to file a Response to a Rule 37.1 petition under Arkansas Rule of Criminal Procedure 37.2. Ark. R. Crim. P. 37.2(1) (“Within twenty (20) days after service of a petition under this rule, the state may file a response thereto.”). Rule 37.3 nevertheless permits summary disposition of a Rule 37.1 petition where the files and records of the case conclusively show that the petitioner is entitled to no relief. Ark. R.Crim. P. 37.3(a). Our rules clearly contemplate that the court may examine the claims in a Rule 37.1 petition independently and dispose of the petition' summarily where it makes appropriate written findings in support of the summary disposition under Rule 37.3(a).

Bowerman’s last claim alleges that error resulted when the circuit court' denied relief without permitting him an opportunity to expand on the allegations’ in his petition at a hearing. He contends that, because he did not have counsel representing him, he poorly articulated the basis for his claims, that is, he did not fully describe the theory of the case that his attorney should have pursued. Some of Bowerman’s claims were based on assertions that counsel should- have pursued a defense strategy other than the one used, but the circuit-court found that Bowerman did not identify an alternate theory of the case that counsel should- have employed instead. • ' !

Our standard for ineffective-assistance-of-counsel claims is the two-prong analysis, set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rasul v. State, 2015 Ark. 118, 458 S.W.3d 722. To prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced his defense. Mister v. State, 2014 Ark. 446, 2014 WL 5494016. Unless a petitioner makes both showings, the allegations do not meet the benchmark for assessing a claim of ineffective assistance. Houghton, 2015 Ark. 252, 464 S.W.3d 922.

A claimant must show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s alleged errors in order to meet the second prong of the test. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the' trial. Id. The burden is entirely on the claimant to provide facts that affirmatively support his claims of prejudice. Mister, 2014 Ark. 446, 2014 WL 5494016.

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Bluebook (online)
2015 Ark. 350, 470 S.W.3d 267, 2015 Ark. LEXIS 559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowerman-v-state-ark-2015.