Stover v. State

2016 Ark. 167, 489 S.W.3d 674, 2016 Ark. LEXIS 129
CourtSupreme Court of Arkansas
DecidedApril 14, 2016
DocketCR-15-336
StatusPublished
Cited by1 cases

This text of 2016 Ark. 167 (Stover 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
Stover v. State, 2016 Ark. 167, 489 S.W.3d 674, 2016 Ark. LEXIS 129 (Ark. 2016).

Opinion

PER CURIAM

| TPending before this court is an appeal from the denial of appellant Calvin J. Sto-ver’s pro se petition for postconviction relief filed pursuant to Rule 37.1 of the Arkansas Rulés of Criminal Procedure (2015). For the reasons set forth below, the trial court’s order denying postconviction relief is affirmed.

Stover was convicted by a jury of possession of methamphetamine, being a felon in possession of a firearm, and simultaneous ’ possession of drugs'and firearms. He was sentenced to an aggregate' term of 480 months’ imprisonment. His convictions and sentences were affirmed on appeal by the Arkansas Court Of Appeals: Stover v. State, 2014 Ark. App. 393, 437 S.W.3d 695. The mandate was issued on July 8, 2014.

Stover- filed a timely verified postconviction petition on September 8, 2014, 1 which 12alleged that the trial court was biased and that his two attorneys, Sarah Ashley and Scott McElveen, failed to effectively represent him. The trial court did' not conduct a hearing but issued a written order, cited to the record, applied the standard, enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and. concluded that Stover’s . ineffective-assistance-of-counsel claims were not supported by the trial record and denied relief.

This court will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. Kemp v. State, 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). 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.

When considering an appeal from a trial court’s denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on the totality of the evidence under the standard set forth by the United States Supreme Court in Strickland, 466 U.S. 668, 104 S.Ct. 2052, the trial court clearly erred in holding that counsel’s performance was not ineffective. Taylor v. State, 2013 Ark. 146, at 5, 427 S.W.3d 29, 32.

Under the two-prong standard outlined in Strickland, 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. Adkins v. State, 2015 Ark. 336, at 5-6, 469 S.W.3d 790, 795. The reviewing court must indulge in a strong presumption that trial counsel’s conduct falls within .the wide range of reasonable professional' assistance. Id. The petitioner claiming ineffective assistance of counsel has the burden of overcoming this presumption by identifying specific acts or omissions of trial | ¡¡counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the ..result of reasonable professional judgment. Id.

The second prong requires a petitioner to show that counsel’s deficient performance so prejudiced his defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, at 5, 426 S.W.3d 462, 467. Consequently, a petitioner must show that there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt. Breeden v. State, 2014 Ark. 159, at 2, 432 S.W.3d 618, 622 (per curiam). A reasonable probability is a probability sufficient .to undermine confidence in the outcome of the trial. Id. 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. Airsman v. State, 2015 Ark. 409, at 3, 473 S.W.3d 549, 553-54 (per curiam).

For his first point on appeal, Sto-ver argues that, because he ■filed a grievance against the trial judge with the Judicial Discipline and Disability Commission, a conflict of interest arose that caused the trial judge to be biased. Stover argues that the trial judge should have recused after the grievance had been filed. Allegations of judicial bias must be raised at trial and addressed on direct appeal and are not cognizable in postconviction proceedings. Green v. State, 2013 Ark. 455, at 8, 2013 WL 5968933 (per curiam). Further, Sto-ver’s allegations are conclusory in that he fails to identify particular behavior on the judge’s part that prejudiced the outcome of the trial. Conclusory allegations of trial error are not sufficient to warrant granting relief under Rule 37.1. Id.

14Stover argues in his second point on appeal that both counsel had a conflict of interest that allegedly arose when Stover 'filed complaints with the Public Defender Commission against one of his attorneys, Sarah Ashley, which Sto-ver contends created an irreconcilable conflict that impaired the loyalty and the effective representation of both attorneys. Stover’s bare contention that counsel were conflicted is insufficient to establish the existence of an actual conflict of interest, which generally requires a showing that counsel was actively representing the conflicting interests of third parties. Townsend v. State, 350 Ark. 129, 134, 85 S.W.3d 526, 528 (2002).

In the absence of an actual conflict, a petitioner alleging that counsel’s performance was deficient due to another form of conflict must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Townsend, 350 Ark. at 134, 85 S.W.3d at 528 (citing Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002)); Winfield v. Roper, 460 F.3d 1026, 1039 (8th Cir.2006) (explaining that the rule presuming prejudice has not been extended beyond cases in which an attorney has represented more than one defendant). Therefore, as with any ineffective-assistance-of-counsel claim, Stover had the burden of providing factual support to demonstrate that the alleged conflict of interest adversely affected counsel’s performance. Bullock v. State, 353 Ark. 577, 582-83, 111 S.W.3d 380, 384 (2003).

In his Rule 37.1 petition, Stover failed to identify the specific acts or omissions of counsel that resulted from the alleged conflict. The trial court properly found that Stover had not set forth sufficient facts showing that counsel were disloyal and relied on the record when it concluded that counsel took advantage of every opportunity to aid Stover. | ^Although Stover on appeal adds additional factual allegations in support of his conflict claim and seems to raise a new claim that the trial court erred when it refused to appoint other counsel, we are precluded from addressing these new fact allegations and claims that are raised for the first time on appeal. Thornton v. State, 2014 Ark. 113, at 2, 2014 WL 1096263 (per curiam).

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Davis v. State
2018 Ark. App. 540 (Court of Appeals of Arkansas, 2018)

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Bluebook (online)
2016 Ark. 167, 489 S.W.3d 674, 2016 Ark. LEXIS 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stover-v-state-ark-2016.