Walden v. State

2016 Ark. 306, 498 S.W.3d 725, 2016 Ark. LEXIS 254
CourtSupreme Court of Arkansas
DecidedSeptember 15, 2016
DocketCR-14-447
StatusPublished
Cited by11 cases

This text of 2016 Ark. 306 (Walden 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
Walden v. State, 2016 Ark. 306, 498 S.W.3d 725, 2016 Ark. LEXIS 254 (Ark. 2016).

Opinion

PER CURIAM

hln 2011, appellant Larry Eugene Walden, was found guilty by a jury of aggravated robbery and sentenced as a habitual offender to 720 months’ imprisonment. The Arkansas Court of Appeals affirmed. Walden v. State, 2012 Ark. App. 307, 419 S.W.3d 739.

Walden subsequently filed in the trial court a timely, verified petition for post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). The petition was denied, and Walden appealed to this court. We reversed the order and remanded the matter to the trial court for entry of an order that complied with Rule 37.3(a). Walden v. State, 2014 Ark. 10 (per curiam).

On remand, the trial court held a hearing on the petition and again denied post-conviction relief. Walden brings this appeal. Any issues that were argued below, but not raised in this appeal, are considered abandoned. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228.

12WaIden’s Rule 37.1 petition was based on numerous claims that his trial attorney, Timothy Sharum, was ineffective, all of which the trial court rejected. We find no error and affirm the order.

This court will not reverse the trial court’s decision granting or denying posteonviction 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 v. Washington, 466 U.S. 668, 104, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel’s performance was not ineffective. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29. 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, 469 S.W.3d 790. 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 |3defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. Consequently, 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. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). 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. Houghton v. State, 2015 Ark. 252, 464 S.W.3d 922. Finally, conelusory statements that counsel was ineffective cannot be the basis for postconviction relief. M; Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783.

The charge of aggravated robbery against Walden arose from an incident at a bank in Fort Smith in 2009 in which Walden handed a teller a bag with a note that said, “This is a robbery. I have a gun. Give me all your money, no red dye pack.” The teller testified that she took money from her till and placed it in the bag because of Walden’s “menacing scowl” and the implied threat to her life. Prior to instruction of the jury by the trial court, Walden requested an instruction on the lesser-included offense of robbery. The trial court declined to give the instruction on robbery. On direct appeal, the court of appeals did not reach the trial court’s decision to deny the instruction on the lesser-included offense of robbery because Walden did not proffer the instruction. Walden, 2012 Ark. App. 307, 419 S.W.3d 739.

Walden alleged in his Rule 37.1 petition that the failure of his counsel, Sharum, to proffer the instruction amounted to ineffective assistance of counsel because the instruction |4was warranted and because the court of appeals would have reversed the judgment had the proffer been given. The trial court held in its order that counsel was not ineffective because Walden was not entitled to the instruction on the ground that the evidence that Walden had committed aggravated robbery was conclusive; therefore, there was no requirement that the jury be instructed on mere robbery.

We agree. We need not reiterate the discussion by the court of appeals in its decision finding that Walden’s conduct satisfied the elements of aggravated robbery as defined by Arkansas Code Annotated section 5-12-103 (Repl. 2006). Walden, 2012 Ark. App. 307, at 6-7, 419 S.W.3d at 743. As there was substantial evidence that Walden committed aggravated robbery, he did not establish that there is a reasonable probability that the outcome of his trial would have been different had the lesser-included-offense instruction been given or that the court of appeals would have reversed the judgment had there been a proffer of the instruction. See Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510 (holding that when the evidence adduced at trial was conclusive to show that aggravated robbery was committed, the trial court was not required to administer a jury instruction on the lesser-included offense of ordinary robbery).

Walden’s next point for reversal of the trial court’s order pertains to his having been convicted ,as a habitual offender at the Arkansas trial based on his prior convictions in federal court in Oklahoma of three counts of robbery. Walden contended in his Rule 37.1 petition, as he does in this appeal, that Sharum was ineffective on the ground that Sharum, before Walden was tried for aggravated robbery in Arkansas, erred in advising him to plead guilty |sto the three robbery counts in federal court in Oklahoma and thus caused him to be sentenced as a habitual offender in Arkansas.

The trial court noted in its order that Sharum had no authority to advise Walden on his pending federal charges, 1 that Sha-rum testified at the hearing that he had told Walden to listen to his attorney in the federal court proceedings, and that Walden admitted at the Rule 37.1 hearing that Sharum had not expressly advised him to plead guilty in federal court.

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Bluebook (online)
2016 Ark. 306, 498 S.W.3d 725, 2016 Ark. LEXIS 254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walden-v-state-ark-2016.