Horton v. State

2016 Ark. 424, 504 S.W.3d 582, 2016 Ark. LEXIS 348
Supreme Court of Arkansas·Decided December 1, 2016·No. CR-16-203·Published·Cited by 1 cases

Opinion

PER CURIAM

[ jin 2013, appellant Curtis Lamont Horton was found guilty by a jury of aggravated residential burglary, theft of property, and failure to appear. He was sentenced as a habitual offender to an aggregate sentence of 708 months’ imprisonment. The Arkansas Court of Appeals affirmed. Horton v. State, 2014 Ark. App. 250, 2014 WL 1661504. Horton subsequently filed in the trial court a timely, verified petition for posteonviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013). The trial court denied the petition, and this court granted Horton’s motion to proceed with a belated appeal of the order. Horton v. State, 2016 Ark. 193, at 1, 2016 WL 1730602 (per curiam). Both Horton and the State have filed briefs, and the appeal is now before us.

The trial court order denying post-conviction relief is affirmed. A motion that Horton filed to supplement his brief is denied as it is clear from the record that Horton could not prevail in his appeal. This court has held that it will reverse the trial court’s |2decision granting or denying postconviction relief only when that decision is clearly erroneous. Carter v. State, 2015 Ark. 166, at 3, 460 S.W.3d 781, 786. 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. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. Applying this standard of review, we hold that the trial court’s decision was not clearly erroneous in denying Horton’s petition for postconviction relief.

Horton contended in his petition that he was not afforded effective assistance of counsel at trial or on direct appeal. His allegations were stated as conclusions; that is, there was no factual support offered for any of the claims. For that reason, he did not state a ground for relief under Rule 37.1, and trial court did not err in denying the relief sought. Conclusory allegations that are unsupported by facts do not provide a basis for granting post-conviction relief under the Rule or provide a basis for holding an evidentiary hearing on the allegations contained in a petition. Sandrelli v. State, 2016 Ark. 103, at 3, 485 S.W.3d 692, 694.

Assertions of ineffective assistance of counsel are assessed under the standard set by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the two-prong standard in Strickland, a petitioner seeking postcon-viction relief must show that his counsel’s performance was deficient and that the deficient performance resulted in prejudice. Fukunaga v. State, 2016 Ark. 164, at 3, 489 S.W.3d 644, 646. There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, and the petitioner has the burden of overcoming that presumption by identifying lathe acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Feuget v. State, 2015 Ark. 43, at 4, 454 S.W.3d 734, 738. Matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel’s professional judgment and are not grounds for a finding of ineffective assistance of counsel. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). From a review of Horton’s petition, the trial court’s order, and the briefs in this appeal, it cannot be said that any allegation raised by Horton met the Strickland standard and overcame the presumption that he was afforded effective assistance of counsel at trial.

With respect to Horton’s claims of ineffective assistance of counsel on direct appeal, the petitioner has the burden of making a clear showing that counsel failed to raise some meritorious issue on appeal. Moore v. State, 2011 Ark. 269, 2011 WL 2412787 (per curiam). Cóunsel’s failure to raise a specific issue must have amounted to error of such magnitudé that it rendered appellate counsel’s performance constitutionally deficient under the Strickland criteria. The petitioner must show that there could have been a specific issue raised on appeal that would have resulted in the appellate court’s declaring reversible error. State v. Rainer, 2014 Ark. 306, 440 S.W.3d 315, reh’g denied, 2014 Ark. 373, 440 S.W.3d 328. It is the petitioner’s responsibility to establish, that the issue was raised at trial, that the trial court erred in its ruling on the issue, and that an argument- concerning the issue could have been raised on appeal to merit appellate relief. Id. Conclusory claims of ineffective assistance of appellate counsel are insufficient to warrant a finding that appellate counsel did not render competent representation on direct appeal under the Strickland standard. See Magness v. State, 2015 Ark, 185, 461 S.W.3d 337 (per curiam). .Horton has fallen far short of establishing that there was a particular meritorious issue that appellate counsel could have raised on direct appeal but did not. Therefore, he has not shown that he was denied effective assistance of counsel on appeal. See Frazier v. State, 2016 Ark. 55, 482 S.W.3d 305 (per curiam).

In addition to numerous allegations of ineffective assistance of counsel, Horton also made a series of statements in his petition that may have been intended as claims of trial error, such as “impartial jury was not impaneled,” “prosecutorial misconduct during sentencing phase,” and the statement that his sentence was illegal because he was denied due process of law. If the allegations were indeed intended as claims of trial error, issues that could have been addressed at trial and on the record on direct appeal are not grounds for relief under Rule 37.1. Chatmon v. State, 2016 Ark. 126, at 3, 488 S.W.3d 501, 504 (per curiam), reh’g denied (Apr. 21, 2016). Furthermore, as to Horton’s allegations of prosecutorial misconduct, we have held that such claims are a direct challenge to the judgment and not a collateral attack, and thus those claims are outside the purview of a Rule 37.1 proceeding. See Wood v. State, 2015 Ark. 477, 478 S.W.3d 194, reh’g denied (Feb. 11, 2016).

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Horton v. State, 2016 Ark. 424, 504 S.W.3d 582, 2016 Ark. LEXIS 348 (Ark. 2016).

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