Jeffery Earl Matlock v. State of Arkansas

Opinion

Cite as 2026 Ark. App. 387 ARKANSAS COURT OF APPEALS DIVISION III

No. CR-25-296

JEFFERY EARL MATLOCK Opinion Delivered September 2, 2026

APPELLANT APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT

V. [NO. 30CR-22-75]

STATE OF ARKANSAS HONORABLE STEPHEN L. SHIRRON, JUDGE

APPELLEE AFFIRMED

WAYMOND M. BROWN, Judge

Appellant Jeffery Matlock was found guilty by a Hot Spring County Circuit Court jury of possession of a firearm by certain persons, second-degree domestic battery, and first-degree terroristic threatening. He was sentenced to a twenty-nine-year term of incarceration in the Arkansas Division of Correction.1 We affirmed his convictions on direct appeal. 2 Matlock now appeals the

1 Matlock was sentenced to serve consecutive terms of incarceration of seventeen years, six years, and six years, respectively.

2 Matlock v. State, 2024 Ark. App. 69, 683 S.W.3d 621.

denial of his petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1.3 Because Matlock has failed to demonstrate that he is entitled to such relief, we affirm.4 On appeal from a circuit court’s ruling on a petitioner’s request for Rule 37 relief, this court will not reverse the circuit court’s decision granting or denying postconviction relief unless it is clearly erroneous.5 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 made.6 The benchmark for judging a claim of ineffective assistance of counsel is “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”7 Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. 8 A petitioner making an ineffective-assistance-of-counsel claim must show that counsel’s performance fell below an objective

3 (2023).

On May 20, 2025, Matlock’s counsel filed a motion seeking the recusal or disqualification 4

of Judge Stephanie Potter Barrett. The motion was passed to the panel for consideration with the submission of the case. Because Judge Barrett is not on this panel, the motion is moot.

5 Kemp v. State, 347 Ark. 52, 60 S.W.3d 404 (2001).

6 Id.

7 Strickland v. Washington, 466 U.S. 668, 669 (1984).

8 Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007).

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standard of reasonableness.9 A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.10 Second, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he or she was deprived of a fair trial.11 The petitioner must show there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors.12 A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial.13 Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable.14 Additionally, conclusory statements that counsel was ineffective cannot be the basis for postconviction relief.15 On appeal, Matlock first contends that his sentence for possession of a firearm by certain persons is illegal because the jury was instructed on the elements supporting Class D felon in possession, not the elements of Class B felon in possession for which he was sentenced.

9 Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam).

10 Id.

11 Id.

12 Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006).

13 Id.

14 Id.

15 Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783.

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Arkansas Code Annotated section 5-73-103(c)(1)16 provides that possession of a firearm by certain persons is a Class B felony if the person has a prior violent felony conviction. Matlock contends that, at trial, he stipulated to the fact that he had a prior felony conviction, not a violent felony conviction. He further asserts that the instructions to the jury stated, in part, that the State must prove that he had been convicted of a felony. Matlock argues that “what the jury actually was asked to find, and what it did find, was the Class D level of the offense.” He appears to argue that sentencing him pursuant to the statutory range for the Class B level of the charged offense illegally increased the penalty for the crime submitted to the jury and proved beyond a reasonable doubt. Thus, he asserts that his Class B level conviction and sentence should be reduced to the Class D level of the offense.

Although Matlock attempts to craft his argument as one contesting an illegal sentence, it is clearly a challenge to the conviction itself. A direct challenge to the sufficiency of the evidence is not cognizable in postconviction proceedings.17 Furthermore, the record demonstrates that Matlock was charged by criminal information with possession of a firearm by certain persons (or felon in possession) at the Class B felony level. He was also convicted and sentenced at the Class B felony level. Notably, in the sentencing phase of trial, the State introduced certified copies of Matlock’s extensive criminal history as a habitual offender with eight prior felony convictions, including violent felonies such as aggravated robbery and aggravated assault. The jury was instructed that Matlock’s conviction of possession of a firearm by certain persons subjected him to a sentence ranging from not less than five years and not more

16 (Repl. 2024).

17 See Bell v. State, 2010 Ark. 65, 360 S.W.3d 98.

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than forty years in the Arkansas Division of Correction. The jury returned a sentence of seventeen years on the possession charge, well within the statutory sentencing range for a Class B felony.

To the extent that Matlock asserts that the jury instructions were inaccurate, such claims are to be raised on direct appeal, although here, the argument would have been meritless. It is well settled that no party may assign as error the giving of or failure to give an instruction unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds for his objection.18 Matlock failed to object to the jury instructions, only raising the issue for the first time in his petition seeking postconviction relief.

Matlock also contends that his trial counsel and appellate counsel were ineffective for not challenging the sufficiency of the evidence supporting his sentence at the Class B felony level. The evidence introduced at trial established that Matlock has an extensive criminal history, with eight prior felony convictions, including violent felony convictions. When a petitioner asserts that counsel is ineffective for failing to make a motion or an argument, the petitioner must show that the motion or argument would have been meritorious, because the failure to make an argument that is meritless is not ineffective assistance of counsel.19 The circuit court did not err in denying postconviction relief on this point.

Matlock next argues that his trial counsel’s performance fell below an objective standard of reasonableness amounting to ineffective assistance for failure to seek severance of the felon-in- possession-of-a-firearm charge. He specifically argues that “[b]ecause of the failure to sever, the jury

18 See Bridges v. State, 327 Ark. 392, 938 S.W.2d 561 (1997).

19 Duck v. State, 2020 Ark. App. 161, 596 S.W.3d 571.

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found out that he was a convicted felon, although that was a highly prejudicial fact.” Pointing to the victim, Carla Thompson’s repudiation of the allegations against him, Matlock argues that he was entitled to severance “because the other evidence was weak.”

At the evidentiary hearing on the postconviction petition, Matlock’s trial counsel, Joseph Jackson, testified that he discussed severance with Matlock, and per his recollection, Matlock agreed to not seek severance and that he wanted only one trial because he did not want to “give the State two different shots at the apple to have him convicted[.]” Trial strategy and tactics are not a basis for postconviction relief.20 When a decision by counsel was a matter of trial strategy, and that decision is supported by reasonable professional judgment, postconviction relief under Rule 37 is not available even when the chosen strategy was improvident in retrospect. 21 Moreover, Matlock has failed to demonstrate how the outcome of the trial would have been different if the possession-of-a-firearm- by-certain-persons charge had been severed. Matlock also argues that his trial counsel provided ineffective assistance by not requesting jury instructions on lesser-included offenses for the charges of second-degree domestic battering and first-degree terroristic threatening. He contends that “it is likely that the jury convicted [him] of the felonies because the lesser charges were not available to them.” Matlock further asserts that his acquittal of two related charges—kidnapping and aggravated assault of a family or household member—demonstrates prejudice. However, he fails to provide facts or evidence in support of that allegation. The burden is entirely on the claimant to provide facts that affirmatively support his or her claims of prejudice; neither conclusory statements nor allegations

20 State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007).

21 Lee v. State, 2017 Ark. 337, 532 S.W.3d 43.

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without factual substantiation are sufficient to overcome the presumption that counsel was effective, and such general statements and allegations will not warrant granting postconviction relief. 22 In light of the foregoing, we hold that the circuit court did not clearly err in denying Matlock’s Rule 37.1 petition.

Affirmed.

VIRDEN and WOOD, JJ., agree.

Jeff Rosenzweig, for appellant.

Tim Griffin, Att’y Gen., by: Michael Zangari, Ass’t Att’y Gen., for appellee.

22 Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477.