Cite as 2025 Ark. App. 566 ARKANSAS COURT OF APPEALS DIVISION III No. CR-24-746
TYLER CHANDLER Opinion Delivered November 19, 2025 APPELLANT APPEAL FROM THE WASHINGTON V. COUNTY CIRCUIT COURT [NO. 72CR-22-638] STATE OF ARKANSAS APPELLEE HONORABLE JOANNA TAYLOR, JUDGE
AFFIRMED
KENNETH S. HIXSON, Judge
Appellant Tyler Chandler filed his appeal after the Washington County Circuit
Court entered an order denying his amended petition for postconviction relief filed pursuant
to Arkansas Rule of Criminal Procedure 37.1. Appellant argues on appeal that the circuit
court erred in denying his amended petition for postconviction relief because (1) his trial
counsel was ineffective; (2) the circuit court failed to make specific written findings as
required; and (3) the circuit court erred in not giving him a hearing on his petition as
required. We affirm.
I. Background
Before addressing the allegations of ineffective assistance of counsel, it is necessary to
discuss some of the events leading to appellant’s jury trial and the evidence adduced at trial.
On January 19, 2022, appellant sexually assaulted the minor victim (MV) a day before her sixteenth birthday after giving her a benzodiazepine. Appellant was charged by a third
amended felony information with two counts of second-degree sexual assault, a Class B
felony, in violation of Arkansas Code Annotated section 5-14-125(a)(4)(A)(iv) (Supp. 2023);
and one count of introducing a Schedule IV controlled substance into the body of another
person, a Class C felony, in violation of Arkansas Code Annotated section 5-13-210(b) and
(c)(3) (Supp. 2023). A jury trial was held on June 20, 2023.
Amanda McClain, a licensed practical nurse, testified that she has two children.
Appellant is the father of one of her children, and Ms. McClain explained that, despite some
custody issues, they had been coparenting at the time of the incident. She had asked
appellant to watch both children on the night of January 19, 2022, while she worked an
overnight shift. MV is Ms. McClain’s niece. Ms. McClain testified that she had not
suggested nor had appellant told her that MV would also be at her home that night. When
she returned home after her shift, she found MV asleep in her bed. She thought appellant’s
behavior was “erratic,” and she testified that she discovered a plastic bag containing white-
colored rocks in appellant’s pocket that she suspected were drugs. Ms. McClain additionally
testified that she had seen appellant’s prescription bottle for clonazepam. She described the
side effects of the medication and stated that the pills inside the bottle were yellow and
round. She further opined that the bottle felt lighter the morning she returned home than
it had felt the night before she left. After appellant left the home and MV woke up, MV
disclosed to Ms. McClain that appellant had sexually assaulted her, and Ms. McClain called
law enforcement as a mandated reporter. Ms. McClain further testified that she purchased
2 and administered a home drug-screening test, which showed that MV tested positive for
benzodiazepine. Ms. McClain explained that clonazepam is a benzodiazepine and that none
of MV’s prescriptions would “show positive for benzodiazepine.”
MV testified at trial that appellant sent her a message on Facebook Messenger on
January 19, 2022, asking her how she was feeling. She had been recovering from COVID-
19. These messages were admitted into evidence. MV told appellant that she felt better,
and appellant asked her if she wanted to come over to help him watch the children. MV
agreed, and appellant picked her up. MV testified that appellant left the children at Ms.
McClain’s home in a closed bedroom while he picked her up. MV stated that she played
video games for a while, and appellant put a frozen pizza in the oven for dinner. While
waiting on the pizza to cook, appellant asked MV if she had ever smoked marijuana and
offered MV two pills that he said would calm any anxiety she had. MV explained that she
took one of the pills, which she described as a tiny yellow disc.
After dinner, appellant put the two younger children to bed. MV stated at trial that
she had been watching television in the living room but “suddenly got, like really tired, but
[she] was, like, really aware of [her] surroundings . . . [she] just felt weird.” MV explained
that appellant sat down on the couch with her and held her hand, which she felt weird about
but did not say anything. At that point, appellant moved closer to MV and slid his hand
under her sweatshirt and felt her breasts, both above and under her bra. Appellant then
unbuttoned MV’s pants, pulled them down a bit, and tried to put his hand down her pants.
He then laid down next to MV. MV stated that appellant was not wearing any pants or
3 underwear and that she could feel appellant’s penis against her leg. Appellant proceeded to
put his mouth on her breasts and tried to pull MV’s pants completely off. MV explained
that she became “really freaked out,” and appellant carried her to the bedroom. Appellant
laid down next to MV on the bed and continued to hold her. MV testified that appellant
told her that she was “a very sexy girl.” MV eventually was able to get up and get dressed.
She explained that she pretended nothing had happened because she was afraid appellant
would hurt her. After appellant left the next morning, she reported the incident to her aunt,
Ms. McClain.
Officer Chase Scallorn testified that he responded to the scene and saw that MV “was
very calm and reserved, almost like in a state of shock.” He explained that her behavior was
very common with victims who had experienced trauma.
Detective Hunter Helms testified that he investigated the allegations. He explained
that he did not have MV undergo a rape kit because there were no allegations of penetration.
Ms. McClain provided him with a list of medications she thought appellant was taking,
including clonazepam. Detective Helms testified that clonazepam is a benzodiazepine, a
Schedule IV controlled substance, and that it usually comes in the form of a yellowish round
pill. Detective Helms further testified that during his investigation, he interviewed appellant.
Detective Helms stated that although appellant denied the allegations, he thought appellant
appeared very nervous during the interview and that appellant was being deceitful. On cross-
examination, Detective Helms did admit that it was not unusual for some people to be
nervous when being questioned by law enforcement.
4 Dale Chiddister, a civilian investigator with the Arkansas State Police Crimes Against
Children Division, testified that he conducted a forensic interview of MV. He explained
that after his investigation, he concluded that the allegations of sexual abuse against
appellant were true. He further explained that he has experience in determining whether a
victim had been coached on what to say during an interview, and given MV’s answers during
the interview, he did not think MV had been coached.
Appellant testified on his own behalf and denied the allegations. He further testified
that he had been communicating with Ms. McClain via Facebook Messenger on the night
in question, but he claimed that the messages had become inaccessible because Ms. McClain
deleted her account. Appellant claimed the messages proved that not only was Ms. McClain
aware that MV had come over but also that it was actually Ms. McClain’s idea that MV come
over to have her play with the children. He denied that Ms. McClain discovered that he had
drugs on him. Although he admitted he had taken three or four clonazepam pills to the
home, he denied giving any to MV.
After all the evidence had been presented, the circuit court reviewed the proposed
jury instructions. Both the State and appellant agreed that the jury instructions were
acceptable and that there were not any other proposed instructions they wished to give the
jury.
The jury convicted appellant of two counts of second-degree sexual assault and one
count of introducing a Schedule IV controlled substance into the body of another. The jury
recommended that he be sentenced to serve ten years’ imprisonment on each of the two
5 counts of second-degree sexual assault and five years’ imprisonment on the count of
introduction of a controlled substance into the body of another, to be served consecutively,
which the circuit court imposed.
Appellant appealed his conviction to this court. On appeal, appellant argued that we
must reverse his conviction because (1) the State made improper comments during closing
arguments; (2) a jury instruction failed to comport with the underlying statutory language;
and (3) his defense counsel failed to perform an adequate investigation to aid in his defense.
Appellant acknowledged that he failed to make any of the three objections he complained
of on appeal before the circuit court; however, he nevertheless argued that we may address
those issues for the first time on appeal by applying the exceptions to the contemporaneous-
objection rules as outlined in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). We
disagreed and affirmed. Chandler v. State, 2024 Ark. App. 260, 688 S.W.3d 170 (Chandler I).
I. Petition for Postconviction Relief
After we affirmed on direct appeal and the mandate was issued in Chandler I,
appellant filed a timely petition for postconviction relief. In his petition, appellant argued
that his trial counsel was ineffective (1) when “he did not do an investigation into
[appellant’s] messages with [MV’s aunt] the night of the incident”; (2) for failing to file a
pretrial motion seeking to suppress the testimony of MV’s aunt, a licensed nurse, who gave
MV a drug test to determine if she had ingested a controlled substance; (3) for failing to
object to the testimony of a forensic interviewer, Dale Chiddister, who questioned MV
regarding the incident with appellant and testified that he found MV’s allegation to be true;
6 (4) for failing to object to an allegedly unconstitutional jury instruction; (5) for failing to
object to remarks made by the prosecutor during closing argument that defendant had the
burden of producing Facebook messages that he testified he had with MV’s aunt; (6) for
failing to object to the prosecutor’s closing argument that appellant’s explanation regarding
deleted Facebook messages was false; (7) for failing to object to the prosecutor’s remark in
closing argument that the State could have charged appellant with an additional offense; (8)
for failing to object to the prosecutor’s remarks that he is a “poor father”; (9) for failing to
properly argue his directed-verdict motion challenging the sufficiency of the evidence; and
(10) for failing to call any witnesses during the sentencing phase of appellant’s trial.
Without a hearing, the circuit court filed an eight-page order denying appellant’s
petition on July 15, 2024. After discussing the history of the case, the circuit court made the
following findings regarding each ground alleged by appellant:
12. Ground 1 alleges ineffective assistance of counsel because Trial Counsel “did not do an investigation into defendant’s messages with Ms. McClain the night of the incident.” Here, petitioner presented no persuasive evidence or facts to support his conclusory allegations in Ground 1. Further, petitioner failed to demonstrate that Trial Counsel’s performance fell below an objective standard of reasonableness. The Court finds that Trial Counsel addressed this issue of Petitioner’s alleged messages with Petitioner on his direct examination. RT 232, 11-25. The Court also finds that Trial Counsel’s choice not to pursue locating messages that may or may not have existed was a matter of trial strategy. Petitioner also failed to demonstrate how investigating the availability of messages that may or may not have existed, prior to trial, could have changed the outcome of the trial.
13. Ground 2 alleges ineffective assistance of counsel because Trial Counsel “did not file a pre-trial motion concerning” the lack of “physical evidence” of a drug test administered to the victim by Ms. McClain, the victim’s aunt. Here, Petitioner presented no persuasive evidence or facts to support his conclusory
7 allegations in Ground 2. Further, Petitioner failed to demonstrate that Trial Counsel’s performance fell below an objective standard of reasonableness. The Court finds that Trial Counsel’s addressing the issue through “cross- examinations and closing arguments,” as indicated by Petitioner, was a matter of trial strategy. Petitioner also failed to demonstrate how filing a pre-trial motion addressing the lack of physical evidence of the drug text would have changed the outcome of the trial.
14. Ground 3 alleges ineffective assistance of counsel because Trial Counsel failed to “object to the testimony of Dale Chiddister with the Arkansas State Police.” Specifically, Petitioner alleges that Counsel was ineffective because he could have successfully blocked aspects of Mr. Chiddister’s testimony with a pre-trial motion. Here, Petitioner presented no persuasive evidence or evidence to support his conclusory allegations in Ground 3. Further, Petitioner failed to demonstrate that Trial Counsel’s performance was deficient and fell below an objective standard of reasonableness. The Court finds that Trial Counsel addressed Mr. Chiddister’s testimony on cross-examination RT 147-149, and that any decision not to object to, or any choice not to file a pre-trial motion to suppress the same, was a matter of trial strategy. Further, the Court finds that the victim’s testimony in this case was credible, and petitioner has provided no facts to show that the jury did not give the victim’s own testimony its proper weight. A victim’s testimony alone is sufficient to secure a conviction in the state of Arkansas. Petitioner has failed to demonstrate how failing to object to Mr. Chiddister’s testimony, or failing to file a pretrial motion to suppress the same, would have changed the outcome of the trial.
15. Ground 4 alleges ineffective assistance of counsel because Trial Counsel “did not object to clearly unconstitutional jury instructions.” Here, Petitioner presented no persuasive evidence or evidence to support his conclusory allegations in Ground 4. The court finds that there was nothing in the instruction given that shifted the burden to Petitioner. Further, Petitioner did not proffer the jury instruction that he alleges should have been given. Any failure or choice not to object to the proffered jury instruction at the time of trial was a matter of trial strategy. Petitioner has also failed to state how, even if the jury instruction was correct, it would have changed the outcome of the trial.
16. Ground 5 alleges ineffective assistance of counsel because Trial Counsel failed, during closing arguments, to object to the prosecutor’s argument that “defendant had the burden of producing Facebook messages.” Here, Petitioner presented no persuasive evidence or facts to support his conclusory
8 allegations in Ground 5. Further, Petitioner failed to demonstrate that Trial Counsel’s performance fell below an objective standard of reasonableness. The Court finds that Trial Counsel did object to prosecutor’s statements regarding the Facebook messages during Cross-examination of the Petitioner; the objection was sustained. RT 253 - 255. Any choice not to re-object to the prosecutor’s synthesis and characterization of the Petitioner’s own testimony during closing arguments was a matter of trial strategy. Petitioner also failed to demonstrate how objecting to these statements during closing arguments would have changed the outcome of the trial.
17. Ground 6 alleges ineffective assistance of counsel because Trial Counsel failed to object to the prosecutor’s argument about how Facebook messages technically work “despite presenting no evidence of the same.” Here, Petitioner presented no persuasive evidence or facts to support his conclusory allegations in Ground 6. Further, Petitioner failed to demonstrate that Trial Counsel’s performance fell below an objective standard of reasonableness. The Court finds that any choice not to object to the prosecutor’s synthesis and characterization of the Petitioner’s own testimony during closing arguments was a matter of trial strategy. Petitioner also failed to demonstrate how objecting to prosecutor’s arguments regarding how Facebook messaging works would have changed the outcome of the trial.
18. Ground 7 alleges ineffective assistance of counsel because Trial Counsel failed to object to the prosecutor’s argument that petitioner “was getting a break because defendant was not charged with additional crimes.” Here, Petitioner presented no persuasive evidence or facts to support his conclusory allegations in Ground 7. Further, Petitioner failed to demonstrate that Trial Counsel’s performance fell below an objective standard of reasonableness. The Court finds that any choice not to object to the prosecutor’s synthesis and characterization of both the victim’s and Petitioner’s testimony during closing arguments was a matter of trial strategy. RT 289, 5-19. Petitioner also failed to demonstrate how objecting to the prosecutor’s comments would have changed the outcome of the trial.
19. Ground 8 alleges ineffective assistance of counsel because Trial Counsel failed to object to the prosecutor’s argument that Petitioner “was a poor father.” Here, Petitioner presented no persuasive evidence or facts to support his conclusory allegations in Ground 8. Further, Petitioner failed to demonstrate that Trial Counsel’s performance fell below an objective standard of reasonableness. The Court finds that any choice not to object to the prosecutor’s synthesis and characterization of the Petitioner’s own testimony
9 during closing arguments was a matter of trial strategy. Petitioner also failed to demonstrate how objecting to the comment would have changed the outcome of the trial.
20. Ground 9 alleges ineffective assistance of counsel because Trial Counsel “did not properly argue either directed verdict motion.” Here, Petitioner presented no persuasive evidence or facts to support his conclusory allegations in Ground 9. Further, Petitioner failed to demonstrate that Trial Counsel’s performance was deficient and fell below an objective standard of reasonableness. The Court finds that regardless of how Petitioner’s motions for directed verdict were argued, the State made a prima facie case for all charged counts to go before the jury. Petitioner also failed to demonstrate how Trial Counsel arguing the directed motions differently would have changed the outcome of the trial.
21. Ground 10 alleges ineffective assistance of counsel because Trial Counsel “declined to present any evidence of any kind at sentencing.” Here, Petitioner presented no persuasive evidence or evidence to support his conclusory allegations in Ground 10. Further, Petitioner failed to demonstrate that Trial Counsel’s performance was deficient and fell below an objective standard of reasonableness. The Court finds that Trial Counsel’s choice not put on evidence at sentencing, or specifically, calling Petitioner’s parents at witness, was a matter of trial strategy. The Court also finds that while the jury did recommend the sentences to run consecutively, the Petitioner’s sentences were legal, and that the aggregate of three hundred months is well under the aggregate statutory maximum for which the Petitioner was convicted and could have been sentenced. Petitioner also failed to demonstrate how calling the parents to testify at sentencing, or putting on other evidence, would have changed the outcome of the trial or the length of Petitioner’s sentence.
B. Conclusions of Law:
1. The Petitioner failed to present any persuasive or credible facts to support his allegations.
2. The Petitioner has failed to show that Trial Counsel’s performance was deficient in that counsel made errors so serious that counsel was not functioning as counsel guaranteed by the 6th Amendment of the U.S. Constitution.
10 3. The Petitioner failed to demonstrate that he suffered prejudice as a result of Trial Counsel’s representation.
4. The Petitioner failed to demonstrate that Trial Counsel’s performance was deficient and fell below an objective standard of reasonableness.
5. The Petitioner failed to demonstrate that there is a reasonable probability that, absent any errors allegedly made by Trial Counsel, a more favorable result would have occurred for the Petitioner, specifically, that the jury would have had reasonable doubt respecting the Petitioner’s guilt.
6. The Petitioner failed to show any prejudice in the proceedings which deprived him of a fair trial. Because Petitioner’s Petition is without merit, and it is conclusive on its face that no relief is warranted, the Petitioner is not entitled to a hearing, and his Rule 37 Petition should be denied.
This appeal followed.1
III. Standard of Review
We do not reverse the denial of postconviction relief unless the circuit court’s
findings are clearly erroneous. Conley v. State, 2014 Ark. 172, 433 S.W.3d 234. A finding is
clearly erroneous when, although there is evidence to support it, after reviewing the entire
evidence, we are left with the definite and firm conviction that a mistake has been made. Id.
In making a determination on a claim of ineffective assistance of counsel, this court considers
the totality of the evidence. Id.
1 We acknowledge that on August 15, 2024, appellant filed a motion to reconsider, for evidentiary hearing, and to clarify the record. Although appellant references this motion in his brief, any denial of this motion is not properly before us. On December 11, 2024, this court granted appellant’s motion to file a belated appeal from the circuit court’s order denying his petition for postconviction relief. Therefore, the order denying appellant’s petition for postconviction relief is properly before us in this appeal.
11 Our standard of review also requires that we assess the effectiveness of counsel under
the two-prong standard set forth by the Supreme Court of the United States in Strickland v.
Washington, 466 U.S. 668 (1984). Conley, supra. In asserting ineffective assistance of counsel
under Strickland, the petitioner must first demonstrate that counsel’s performance was
deficient. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. This requires a showing 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. Woods v. State,
2019 Ark. 62, 567 S.W.3d 494. In other words, the petitioner must show that his counsel’s
performance fell below an objective standard of reasonableness. Mancia v. State, 2015 Ark.
115, 459 S.W.3d 259. Additionally, counsel is allowed great leeway in making strategic and
tactical decisions, particularly when deciding not to call a witness. Johnson v. State, 2018 Ark.
6, 534 S.W.3d 143. Matters of trial strategy and tactics, even if arguably improvident, fall
within the realm of counsel’s professional judgment and are not grounds for finding
ineffective assistance of counsel. Id. A court must indulge in a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance. Woods,
supra. The burden is on the petitioner to overcome this presumption and to identify specific
acts and omissions by counsel that could not have been the result of reasoned professional
judgment. Sims v. State, 2015 Ark. 363, 472 S.W.3d 107. Conclusory statements that
counsel was ineffective cannot be the basis for postconviction relief. Id.
Second, the petitioner must show that the deficient performance prejudiced the
defense, which requires a demonstration that counsel’s errors were so serious as to deprive
12 the petitioner of a fair trial. Conley, supra. This requires the petitioner to show that there is
a reasonable probability that the fact-finder’s decision would have been different absent
counsel’s errors. Id. A reasonable probability is a probability sufficient to undermine
confidence in the outcome of the trial. Id.
Unless a petitioner makes both Strickland showings, it cannot be said that the
conviction resulted from a breakdown in the adversarial process that renders the result
unreliable. Id. We also recognize that “there is no reason for a court deciding an ineffective
assistance claim . . . to address both components of the inquiry if the defendant makes an
insufficient showing on one.” Anderson v. State, 2011 Ark. 488, at 3–4, 385 S.W.3d 783, 787
(quoting Strickland, 466 U.S. at 697).
IV. Ineffective-Assistance-of-Counsel Claims
In his first point on appeal, appellant argues that the circuit court “erred generally in
not giving appellant relief under Arkansas Rules of Criminal Procedure 37 by holding that
trial counsel for appellant was not ineffective despite the record and petition clearly showing
that trial counsel was ineffective.” He suggests that the merits of his petition “may not be
ripe because appellant was unable to present evidence, specifically testimony from trial
counsel and testimony from potential sentencing witnesses, that were necessary to develop
appellant’s arguments.” Instead, he suggests that his petition presented a question as to trial
counsel’s effectiveness that should have been “explored with an evidentiary hearing,” which
we address in our discussion of appellant’s third point on appeal. Much of appellant’s
argument in his first point on appeal complains that the circuit court found that trial
13 counsel’s decisions constituted a matter of trial strategy. However, we note that the circuit
court made other findings regarding each ground and that trial strategy was not the sole basis
for the circuit court’s denial. We address appellant’s specific arguments for reversal
regarding the denial of each ground alleged in his petition2 as follows.
A. Failing to Investigate Facebook Messages
In the first ground of appellant’s petition, he alleged that appellant was ineffective for
failing to “do an investigation into defendant’s [Facebook] messages with Ms. McClain the
night of the incident.” More specifically, appellant alleged in his petition that his trial
counsel should have investigated into the existence of the Facebook messages appellant
testified transpired and Ms. McClain denied transpired at trial. Appellant alleged that if the
messages could have been introduced as rebuttal evidence at trial, it would have “put all of
Ms. McClain’s testimony into doubt.” That said, appellant readily admitted that he did not
have the messages and that he did not know if any messages existed that could have been
presented at trial. As quoted above, the circuit court denied appellant’s first ground on the
basis that appellant “presented no persuasive evidence or facts to support his conclusory
allegations,” appellant failed to demonstrate that counsel’s “performance fell below an
objective standard of reasonableness,” counsel’s “choice to not pursue locating messages that
may or may not have existed was a matter of trial strategy,” and appellant “failed to
2 Although the circuit court denied the eighth ground alleged in appellant’s petition, appellant has failed to specifically raise any argument for reversal regarding that ground on appeal. Therefore, any argument is considered abandoned. Elliott v. State, 2022 Ark. 165, 653 S.W.3d 776.
14 demonstrate how investigating the availability of messages that may or may not have existed,
prior to trial, could have changed the outcome of the trial.”
Counsel has a duty to make a reasonable investigation or to make a reasonable
decision that makes particular investigations unnecessary; but where a petitioner under Rule
37.1 alleges ineffective assistance for failure to perform adequate investigation, he must
delineate the actual prejudice that arose from the failure to investigate and demonstrate a
reasonable probability that the specific materials that would have been uncovered with
further investigation could have changed the trial outcome. Reynolds v. State, 2023 Ark. App.
106, 661 S.W.3d 259. The burden is entirely on the claimant to provide facts that
affirmatively support his or her claims of prejudice; neither conclusory statements nor
allegations without factual substantiation are sufficient to overcome the presumption that
counsel was effective, and such statements and allegations will not warrant granting
postconviction relief. Id.
On appeal, appellant argues that “trial counsel’s lack of a pretrial investigation into
Facebook Messages was professionally unreasonable and that unreasonableness prejudiced
the defendant.” He suggests that trial counsel failed to investigate the messages because “trial
counsel did not understand how to perform an investigation” and therefore cannot be part
of any trial strategy as found by the circuit court. However, as noted above, the circuit court
did not deny appellant’s first ground on the sole basis of trial strategy. Appellant fails to
specifically address those additional findings on appeal or explain why those findings were
clearly erroneous. Instead, he simply concludes his first argument on appeal by stating the
15 following: “Since, with the exception of appellant’s ninth point, the record does not clearly
show that counsel was effective then not only is appellant entitled to a hearing under
Arkansas Rule of Criminal Procedure 37.3(c) but also appellant argues based upon
appellant’s petition, motion to reconsider and this appeal that trial counsel was ineffective.”
Conclusory statements in a brief on appeal are insufficient to overcome the presumption
that counsel was effective. Boston v. State, 2023 Ark. App. 555, 681 S.W.3d 519. Further,
we do not research or develop arguments for appellants. Id. Accordingly, we cannot say that
the circuit court’s denial of appellant’s first ground was clearly erroneous and affirm.
B. Failing to File Pretrial Motions
In the second and third grounds of appellant’s petition, he argued that trial counsel
was ineffective for failing to file pretrial motions. He alleged that trial counsel should have
moved to suppress Ms. McClain’s testimony regarding the over-the-counter drug test because
there “was no physical evidence.” He also alleged that trial counsel should have moved to
suppress Mr. Chiddister’s testimony that he found MV’s allegations to be true because it was
not relevant and “extremely prejudicial.” The circuit court denied these grounds on the basis
that appellant “presented no persuasive evidence or facts to support his conclusory
allegations,” he failed to demonstrate that counsel’s “performance fell below an objective
standard of reasonableness,” counsel’s choices were a “matter of trial strategy,” and he failed
to demonstrate how filing a pretrial motion would have changed the outcome of the trial.
On appeal, appellant complains that the circuit court “again indicated that not filing
pre-trial motions was trial strategy without indicating why.” As with appellant’s first ground,
16 appellant fails to specifically address the other bases for the circuit court’s denial. Conclusory
statements in a brief on appeal are insufficient to overcome the presumption that counsel
was effective. Boston, supra. Further, we do not research or develop arguments for appellants.
Id. Accordingly, we cannot say that the circuit court’s denial of appellant’s second and third
grounds was clearly erroneous and affirm.
C. Failing to Object to Jury Instructions
In the fourth ground of appellant’s petition, he argued that the jury instructions to
the circuit court were inaccurate and alleged that the instruction improperly shifted the
burden to him. The circuit court denied this ground on the basis that appellant “presented
no persuasive evidence or facts to support his conclusory allegations,” “there was nothing in
the instruction given that shifted the burden” to appellant, appellant failed to proffer the
jury instruction that he alleges should have been given, counsel’s choices were a “matter of
trial strategy,” and appellant failed to state how a different jury instruction would have
changed the outcome of the trial.
On appeal, appellant’s entire discussion regarding this specific ground is limited to
three sentences:
Appellant’s fourth point argues that trial counsel should have objected to a clearly erroneous jury instruction. The court skirts the issue of whether the jury instruction was erroneous and rather indicates that since trial counsel did not object or proffer a different instruction then trial counsel’s actions amounted to trial strategy. This does not make logical sense as the record is unclear on whether trial counsel even noticed that the jury instruction was clearly erroneous.
17 Appellant’s argument in his appellate brief is conclusory, and he does not cite any authority
in support of his argument or otherwise develop the issue of why the circuit court’s multiple
bases for denying this ground were clearly erroneous. See Sims, 2015 Ark. 363, 472 S.W.3d
107. This court does not research or develop arguments for appellants. Id. Bare assertions
of ineffectiveness are not enough, and conclusory statements that counsel was ineffective will
not sustain a Rule 37 petition. Id. Accordingly, we cannot say that the circuit court’s denial
of appellant’s fourth ground was clearly erroneous and affirm.
D. Prosecutor’s Comments During Closing Arguments
In the fifth through seventh grounds of appellant’s petition, he argued that trial
counsel was ineffective for failing to object to three comments made by the prosecutor during
closing arguments: (1) “the prosecutor argued that defendant had the burden of producing
[F]acebook messages”; (2) “the prosecutor argued about how technically [F]acebook messages
work despite presenting no evidence of same”; and (3) “the prosecutor argued that defendant
was getting a break because defendant was not charged with additional crimes.” He further
argued without any citation to authority that the prosecutor’s comments led to appellant’s
guilty verdict because they were “geared toward inflaming the passions of the jury instead of
sticking to the relevant evidence presented, switched the burden of proof upon the
defendant and testified as an expert on [F]acebook messages.” The circuit court denied these
grounds on the basis that appellant “presented no persuasive evidence or facts to support his
conclusory allegations,” appellant failed to demonstrate that counsel’s “performance fell
below an objective standard of reasonableness,” counsel’s choices were a “matter of trial
18 strategy,” and appellant failed to demonstrate how any objections would have changed the
outcome of the trial.
On appeal, appellant’s argument again focuses only on the circuit court’s denial on
the basis of trial strategy. Appellant’s entire discussion regarding these three specific grounds
is limited to the following three sentences:
Appellant’s five through seven points argue that prosecutorial statements during closing were clearly objectionable and that trial counsel did not object. Here Judge Taylor indicated that trial counsel’s trial strategy was to object to similar questions during case in chief and then to not again object during the prosecutor’s closing remarks. It does not make sense nor is it supported by the record that objecting in one place and not another to similar issues is trail strategy.
Conclusory statements in a brief on appeal are insufficient to overcome the presumption
that counsel was effective. Boston, supra. Appellant does not cite any authority in support of
his argument or otherwise develop the issue of why the circuit court’s other bases for denying
this ground were clearly erroneous. See Sims, 2015 Ark. 363, 472 S.W.3d 107. Further, we
do not research or develop arguments for appellants. Id. Accordingly, we cannot say that
the circuit court’s denial of appellant’s fifth through seventh grounds was clearly erroneous
and affirm.
E. Directed-Verdict Motions
In the ninth ground of appellant’s petition, he argued that trial counsel was
ineffective because he failed to “properly argue either directed verdict motion.” The circuit
court denied this ground on the basis that appellant “presented no persuasive evidence or
facts to support his conclusory allegations,” appellant failed to demonstrate that counsel’s
19 “performance fell below an objective standard of reasonableness,” and appellant failed to
demonstrate how trial counsel arguing the directed-verdict motions differently would have
On appeal, although appellant curiously argues that trial counsel’s decisions at trial
were not a matter of trial strategy, he concedes that he “could not prevail [on this ground] as
the record appears clear that even if trial counsel properly argued the motion for directed
verdict[,] the motion would have failed due to the prosecution making a prima facie case.”
Accordingly, we cannot say that the circuit court’s denial of appellant’s ninth ground was
clearly erroneous and affirm.
F. Failing to Call Any Witnesses During the Sentencing Phase
In the tenth ground of appellant’s petition, he argued that trial counsel was ineffective
for failing to call his parents as witnesses during the sentencing phase. He claimed that his
parents were local and would have said “good things.” He further argued without any
citation to authority that the jury sentenced him “more harshly because counsel did not
argue on behalf of his client or present evidence/testimony of a family member that could.”
The circuit court denied this ground on the basis that appellant “presented no persuasive
evidence or facts to support his conclusory allegations,” appellant failed to demonstrate that
counsel’s “performance fell below an objective standard of reasonableness,” counsel’s choices
were a “matter of trial strategy,” appellant’s sentences were legal and well under the aggregate
statutory maximum, and appellant failed to demonstrate how his parents’ testimony would
have changed the outcome of the trial or the length of his sentence
20 On appeal, appellant’s argument again focuses only on the circuit court’s denial on
the basis of trial strategy. Appellant’s entire discussion regarding this specific ground in his
brief states the following:
Appellant’s tenth argument is that since trial counsel declined to present any evidence or argument at all during sentencing then that was ineffective assistance. The trial court again invoked that trial counsel’s decision to not present evidence or argument that defendant should receive a lighter sentence was trial strategy. There is nothing in the record that would agree with this conclusion.
As in other grounds, appellant does not cite any authority in support of his argument or
otherwise develop the issue of why the circuit court’s other bases for denying this ground
were clearly erroneous. Sims, 2015 Ark. 363, 472 S.W.3d 107. We do not research or
develop arguments for appellants. Id.
Moreover, the decision to call a witness is generally one of trial strategy and outside
the purview of Rule 37. Whiteside v. State, 2024 Ark. 30, 684 S.W.3d 588. The fact that
there was a witness or witnesses who could have offered beneficial testimony is not, in itself,
proof of counsel’s ineffectiveness. Id. When a petitioner under Rule 37 asserts that his trial
counsel was ineffective for failure to call a witness or witnesses, it is incumbent on the
petitioner to name the witness, provide a summary of that witness’s testimony, and establish
that the testimony would have been admissible. England v. State, 2018 Ark. App. 137, 543
S.W.3d 553. Because appellant failed to provide a summary of the potential witnesses’
testimony in his petition, the allegation was conclusory and did not merit further
consideration. A conclusory claim is not a ground for postconviction relief. Id. The burden
is entirely on the petitioner in a Rule 37 proceeding to provide facts that affirmatively
21 support the claims of prejudice. Id. Conclusory statements without factual substantiation
are not sufficient to overcome the presumption that counsel was effective. Id. Accordingly,
we cannot say that the circuit court’s denial of appellant’s tenth ground was clearly erroneous
V. Specific Written Findings
Appellant complains that the circuit court failed to make specific written findings
when it denied his claims of ineffective assistance of counsel. Arkansas Rule of Criminal
Procedure 37.3(a) states that “[i]f the petition and the files and records of the case
conclusively show that the petitioner is entitled to no relief, the trial court shall make written
findings to that effect, specifying any parts of the files, or records that are relied upon to
sustain the court’s findings.” If the circuit court fails to make such findings, it is reversible
error, except in cases where it can be determined from the record that the petition is wholly
without merit or where the allegations in the petition are such that it is conclusive on the
face of the petition that no relief is warranted. Henington v. State, 2012 Ark. 181, 403 S.W.3d
55.
Here, the circuit court’s findings are sufficient to specify the basis for its ruling. In
its order, the circuit court stated that it reviewed the pleadings and transcripts in denying
appellant’s petition for postconviction relief. The circuit court filed an eight-page order
outlining each of appellant’s ten grounds and the reasons for its denial of those grounds.
Accordingly, appellant’s argument lacks merit, and we affirm.
22 VI. Hearing
Appellant finally complains that the circuit court denied his claims of ineffective
assistance of counsel without holding a hearing. Arkansas Rule of Criminal Procedure 37.3
requires an evidentiary hearing in a Rule 37.1 postconviction proceeding unless the petition
and the files and records of the case conclusively show that the petitioner is entitled to no
relief. Horton v. State, 2016 Ark. 424, 504 S.W.3d 582 (per curiam); Crawford v. State, 2023
Ark. App. 341, 669 S.W.3d 889. If the files and the record conclusively show that the
petitioner is not entitled to relief, the circuit court may simply make written findings to that
effect, “specifying any parts of the files, or records that are relied upon to sustain the court’s
findings.” Ark. R. Crim. P. 37.3(a). Conclusory allegations that are unsupported by facts
do not provide a basis for either an evidentiary hearing or postconviction relief. Henington
v. State, 2012 Ark. 181, 403 S.W.3d 55. There is no requirement that the court grant an
evidentiary hearing on an allegation other than one of specific facts from which it can be
concluded that the petitioner suffered some actual prejudice. McDaniels v. State, 2014 Ark.
181, 432 S.W.3d 644. Furthermore, the supporting facts must appear in the petition, and
the petitioner cannot rely on the possibility that facts will be elicited from witnesses if a
hearing is held. Id. Postconviction relief is not available to the petitioner who wishes to have
a hearing in the hopes of finding some ground for relief. Id. From our review, we conclude
that it is clear from the petition and the files and records of the case that appellant is entitled
to no relief and that the circuit court did not err in failing to hold an evidentiary hearing.
Affirmed.
23 KLAPPENBACH, C.J., and BARRETT, J., agree.
Samuel L. Hall, for appellant.
Tim Griffin, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.