Cite as 2021 Ark. App. 384 Elizabeth Perry I attest to the accuracy and ARKANSAS COURT OF APPEALS integrity of this document DIVISION III 2023.07.12 11:32:46 -05'00' No. CR-20-712 2023.003.20215 Opinion Delivered October 6, 2021 RODNEY GOSHIEN APPEAL FROM THE SALINE APPELLANT COUNTY CIRCUIT COURT [NO. 63CR-18-928] V. HONORABLE GARY ARNOLD, STATE OF ARKANSAS JUDGE
APPELLEE AFFIRMED
WAYMOND M. BROWN, Judge
Appellant Rodney Goshien appeals the order of the Saline County Circuit Court
denying his petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules
of Criminal Procedure (2019). Although appellant raises numerous points on appeal, none
require reversal. We affirm.
Appellant was convicted by a Saline County jury of commercial burglary and theft
of property for which he was sentenced as a habitual offender to an aggregate term of thirty
years’ imprisonment in the Arkansas Department of Correction. We affirmed his conviction
on direct appeal. 1 Appellant then filed in the circuit court a petition for postconviction
relief. In an order entered on September 3, 2020, the circuit court, without holding an
1 See Goshien v. State, 2020 Ark. App. 265, 601 S.W.3d 138. evidentiary hearing, denied appellant’s petition seeking Rule 37.1 relief. From that denial,
appellant now appeals.
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. 2 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. 3
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.” 4 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. 5 A petitioner making an ineffective-assistance-of-counsel claim
must show that counsel’s performance fell below an objective standard of reasonableness. 6
2 Kemp v. State, 347 Ark. 52, 60 S.W.3d 404 (2001). 3 Id. 4 Strickland v. Washington, 466 U.S. 668 (1984). 5 Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). 6 Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam).
2 A court must indulge in a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. 7
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. 8 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. 9 A reasonable probability is a probability sufficient to undermine
confidence in the outcome of the trial. 10 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. 11 Additionally, conclusory statements that counsel was ineffective
cannot be the basis of postconviction relief. 12
As an initial matter, appellant alleges that due to “malfeasance of the Saline County
Circuit Court Clerk and court reporter,” the record was falsely certified on direct appeal.
He filed a writ of certiorari seeking relief and stated that in the event the writ is granted, the
postconviction appeal “should be dismissed as moot since Rule 37 proceedings are not ripe
7 Id. 8 Id. 9 Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). 10 Id. 11 Id. 12 Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783.
3 until the direct appeal of the conviction has been concluded.” Appellant’s writ of certiorari
was denied by order issued on March 17, 2021.
Appellant’s first argument on appeal is that the circuit court’s failure to give a limiting
instruction concerning the videotaped statement of witness, Bobby Scarberry, was a
violation of his fundamental right to due process, right to confrontation, right to a jury trial,
and other rights under the laws of the United States and Arkansas. Appellant contends that
the circuit court erroneously denied relief on this ground finding that it had already been
addressed on direct appeal. However, appellant asserts that on direct appeal, the issue was
whether the failure to give the limiting instruction to the jury was a violation of the Arkansas
Rules of Evidence and not whether it amounted to a violation of his constitutional rights.
We agree with the circuit court’s finding that the issue concerning the erroneous jury
instruction was addressed on direct appeal. We are not persuaded by appellant’s creative
attempt to revive the argument. Additionally, in general, trial errors, including
constitutional errors, cannot be raised for the first time in a Rule 37 proceeding. 13 The
record is devoid of any instance in which appellant raised any of the constitutional arguments
regarding Scarberry’s videotaped statement prior to the petition for postconviction relief.
Appellant next argues that he was falsely arrested, and the illegal arrest led to a tainted
“in-court identification by the alleged victim such that the identification should have been
excluded.” In the postconviction petition, appellant argued only that he was “arrested,
charged and held for months based on an arrest warrant that was issued for another person.”
First, we observe that appellant has expanded the argument made in the postconviction
13 Hart v. State, 2020 Ark. App. 31.
4 petition. To the extent that his argument was not raised in the original petition below, it is
not preserved for appeal. 14 Second, a challenge to the validity of an arrest is not cognizable
under Rule 37 proceedings. 15
Next, appellant argues that the circuit court’s instruction to the jury to fill out “both
verdict forms” in response to the question of whether the jury was allowed to convict
appellant of one of the charges but not the other was equivalent to instructing the jury to
convict him of both charges. Again, on appeal, appellant expands this argument but, for
our purposes, we consider only the aforementioned, as it is the extent to which the issue is
properly preserved. Appellant not only failed to object to the jury instruction, but he also
failed to raise the issue on direct appeal. When an issue could have been raised at trial or
on appeal, it is not a basis for collateral attack on the conviction under Rule 37 unless it
presents a question so fundamental as to render the judgment of conviction absolutely
void.
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Cite as 2021 Ark. App. 384 Elizabeth Perry I attest to the accuracy and ARKANSAS COURT OF APPEALS integrity of this document DIVISION III 2023.07.12 11:32:46 -05'00' No. CR-20-712 2023.003.20215 Opinion Delivered October 6, 2021 RODNEY GOSHIEN APPEAL FROM THE SALINE APPELLANT COUNTY CIRCUIT COURT [NO. 63CR-18-928] V. HONORABLE GARY ARNOLD, STATE OF ARKANSAS JUDGE
APPELLEE AFFIRMED
WAYMOND M. BROWN, Judge
Appellant Rodney Goshien appeals the order of the Saline County Circuit Court
denying his petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules
of Criminal Procedure (2019). Although appellant raises numerous points on appeal, none
require reversal. We affirm.
Appellant was convicted by a Saline County jury of commercial burglary and theft
of property for which he was sentenced as a habitual offender to an aggregate term of thirty
years’ imprisonment in the Arkansas Department of Correction. We affirmed his conviction
on direct appeal. 1 Appellant then filed in the circuit court a petition for postconviction
relief. In an order entered on September 3, 2020, the circuit court, without holding an
1 See Goshien v. State, 2020 Ark. App. 265, 601 S.W.3d 138. evidentiary hearing, denied appellant’s petition seeking Rule 37.1 relief. From that denial,
appellant now appeals.
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. 2 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. 3
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.” 4 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. 5 A petitioner making an ineffective-assistance-of-counsel claim
must show that counsel’s performance fell below an objective standard of reasonableness. 6
2 Kemp v. State, 347 Ark. 52, 60 S.W.3d 404 (2001). 3 Id. 4 Strickland v. Washington, 466 U.S. 668 (1984). 5 Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). 6 Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam).
2 A court must indulge in a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. 7
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. 8 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. 9 A reasonable probability is a probability sufficient to undermine
confidence in the outcome of the trial. 10 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. 11 Additionally, conclusory statements that counsel was ineffective
cannot be the basis of postconviction relief. 12
As an initial matter, appellant alleges that due to “malfeasance of the Saline County
Circuit Court Clerk and court reporter,” the record was falsely certified on direct appeal.
He filed a writ of certiorari seeking relief and stated that in the event the writ is granted, the
postconviction appeal “should be dismissed as moot since Rule 37 proceedings are not ripe
7 Id. 8 Id. 9 Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). 10 Id. 11 Id. 12 Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783.
3 until the direct appeal of the conviction has been concluded.” Appellant’s writ of certiorari
was denied by order issued on March 17, 2021.
Appellant’s first argument on appeal is that the circuit court’s failure to give a limiting
instruction concerning the videotaped statement of witness, Bobby Scarberry, was a
violation of his fundamental right to due process, right to confrontation, right to a jury trial,
and other rights under the laws of the United States and Arkansas. Appellant contends that
the circuit court erroneously denied relief on this ground finding that it had already been
addressed on direct appeal. However, appellant asserts that on direct appeal, the issue was
whether the failure to give the limiting instruction to the jury was a violation of the Arkansas
Rules of Evidence and not whether it amounted to a violation of his constitutional rights.
We agree with the circuit court’s finding that the issue concerning the erroneous jury
instruction was addressed on direct appeal. We are not persuaded by appellant’s creative
attempt to revive the argument. Additionally, in general, trial errors, including
constitutional errors, cannot be raised for the first time in a Rule 37 proceeding. 13 The
record is devoid of any instance in which appellant raised any of the constitutional arguments
regarding Scarberry’s videotaped statement prior to the petition for postconviction relief.
Appellant next argues that he was falsely arrested, and the illegal arrest led to a tainted
“in-court identification by the alleged victim such that the identification should have been
excluded.” In the postconviction petition, appellant argued only that he was “arrested,
charged and held for months based on an arrest warrant that was issued for another person.”
First, we observe that appellant has expanded the argument made in the postconviction
13 Hart v. State, 2020 Ark. App. 31.
4 petition. To the extent that his argument was not raised in the original petition below, it is
not preserved for appeal. 14 Second, a challenge to the validity of an arrest is not cognizable
under Rule 37 proceedings. 15
Next, appellant argues that the circuit court’s instruction to the jury to fill out “both
verdict forms” in response to the question of whether the jury was allowed to convict
appellant of one of the charges but not the other was equivalent to instructing the jury to
convict him of both charges. Again, on appeal, appellant expands this argument but, for
our purposes, we consider only the aforementioned, as it is the extent to which the issue is
properly preserved. Appellant not only failed to object to the jury instruction, but he also
failed to raise the issue on direct appeal. When an issue could have been raised at trial or
on appeal, it is not a basis for collateral attack on the conviction under Rule 37 unless it
presents a question so fundamental as to render the judgment of conviction absolutely
void. 16 Further, trial errors, including constitutional errors, cannot be raised for the first
time in a Rule 37 proceeding. 17
For his next point for postconviction relief, appellant argued in his postconviction
petition that he was “prevented from seeking legal redress for the deprivation of his rights
due to state procedural rules which constitutionally restricted the invocation and assertion
14 See Ark. R. Crim. P. 37.2(b). 15 Gunn v. State, 291 Ark. 548, 726 S.W.2d 278 (1987). 16 Campbell v. State, 288 Ark. 213, 703 S.W.2d 855 (1986). 17 Hart, supra.
5 of his fundamental rights[.]” It is not incumbent on this court to deduce or decipher what
procedural rules and what specific rights appellant alleges were violated. Conclusory
allegations that are unsupported by facts do not provide a basis for postconviction relief. 18
Further, claims unsupported by convincing argument need not be considered on appeal. 19
For his next ground for relief, in his postconviction petition, appellant argued that
he was denied the right to retain his own attorney, was advised that he had to accept the
attorney provided by the State, and thereby was deprived of a right that prejudiced his
defense. On appeal, appellant once more greatly stretched the argument contending (1) a
second trial was scheduled a mere ten days after a mistrial had been declared in the first trial,
(2) new evidence was unveiled just prior to the start of trial two, necessitating a change in
defense, and (3) State-provided counsel could not be relied on to vigorously defend against
the new evidence. He provided no explanation to support his allegation that his State-
provided counsel was incompetent to defend him in light of the new evidence. Appellant
fails to establish how he was prejudiced by the denial of his request to retain new counsel
made on the very day his second trial began. Conclusory allegations that are unsupported
by facts do not provide a basis for postconviction relief. 20
Appellant next argues that he was deprived of his right to confront his accuser.
Specifically, he asserts he was prejudiced when the accuser was permitted to change her
18 Shadwick v. State, 2017 Ark. App. 243, 519 S.W.3d 722. 19 Davis v. Kelley, 2021 Ark. 63. 20 Shadwick, supra.
6 testimony following the mistrial. Appellant argues that he was unable to effectively confront
the accuser given her sudden recollection and ability to identify him as the perpetrator, since
she had previously been unable to identify him in the first trial. Constitutional claims such
as the Confrontation Clause argument that appellant asserts here are to be raised at trial or
on direct appeal, not in requests seeking postconviction relief. 21
Last, appellant contends that his trial, following the grant of the mistrial, and the
habitual-offender sentence enhancement both violated his right against double jeopardy.
We recognize that double-jeopardy claims are fundamental claims that can be raised for the
first time in petitions for postconviction relief pursuant to Rule 37.1. 22 However, to the
extent appellant’s argument relates to the sentence enhancement, we find no merit.
Application of the habitual-offender statute does not, per se, constitute double jeopardy
because the habitual-offender act does not create a separate offense. 23 Its purpose is to
subject repeat offenders to a more severe punishment. 24
With respect to being subjected to a second trial following the declaration of a
mistrial in the first one, appellant contends that his trial counsel was pressured by the
prosecutor into requesting a mistrial. He contends that under Oregon v. Kennedy, 25 this
21 See McCroskey v. State, 278 Ark. 156 (1983). 22 See Jenkins v. State, 2017 Ark. 288, 529 S.W.3d 236. 23 Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979). 24 Blackmon v. State, 272 Ark. 157, 612 S.W.2d 319 (1981). 25 456 U.S. 667 (1982).
7 conduct violated his double-jeopardy rights. Only where the government conduct in
question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise
the bar of double jeopardy to a second trial after having succeeded in aborting the first trial
on his own motion. 26 Here, appellant’s assertion that the prosecutor’s statement, “We can’t
do that to this jury. . . . I would prefer not to alienate the jury by asking them to come back
on the 10th,” amounted to goading sufficient to bar retrial is unpersuasive. We hold that
appellant’s argument does not fall within the narrow exception set forth under Kennedy.
Finally, to the extent appellant contends that the circuit court erred by denying his
Rule 37 petition without first holding an evidentiary hearing, his argument is meritless.
Arkansas Rule of Criminal Procedure 37.3 requires an evidentiary hearing be held in a
postconviction proceeding unless the petition, files, and records of the case conclusively
show that the prisoner is entitled to no relief. 27 If the petition and record conclusively show
that the petitioner is not entitled to relief, the circuit court is required to make written
findings to that effect, “specifying any parts of the files, or records that are relied upon to
sustain the court’s findings.” 28 Here, upon review, we hold that the files and records of the
case conclusively established that appellant was entitled to no relief, and the circuit court
made the requisite findings.
Accordingly, we hold that the circuit court did not err in denying appellant’s petition
for Rule 37.1 relief.
26 Id. 27 England v. State, 2018 Ark. App. 137, 543 S.W.3d 553. 28 Van Winkle v. State, 2016 Ark. 98, 486 S.W.3d 778.
8 Affirmed.
GLADWIN and MURPHY, JJ., agree.
Rodney Goshien, Jr., pro se appellant.
Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.