Henington v. State

• Citation: 2012 Ark. 181,403 S.W.3d 55
• Decision Date: 26 April 2012
• Docket Number: No. CR 11–523.,CR 11–523.
• Parties: Danny Ray HENINGTON, Appellant v. STATE of Arkansas, Appellee.
• Court: Supreme Court of Arkansas

2012 Ark. 181

403 S.W.3d 55

Danny Ray HENINGTON, Appellant

v.STATE of Arkansas, Appellee.

No. CR 11–523.

Supreme Court of Arkansas.

April 26, 2012.

Jordan B. Tinsley, Attorney at Law, Little Rock, for appellant.

Dustin McDaniel, Attorney General, Rachel Hurst Kemp, Assistant Attorney General, for appellee.

COURTNEY HUDSON GOODSON, Justice.

Appellant Danny Ray Henington appeals an order of the Benton County Circuit Court denying his petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure (2011). For reversal, appellant argues that the circuit court erred in failing to conduct an evidentiary hearing and that the circuit court's written findings constituted reversible error. We have jurisdiction pursuant to Rule 37 and Arkansas Supreme Court Rule 1–2(a)(8) (2011). We affirm.

In May 2009, appellant stood trial before a Benton County jury. K.J., appellant's six-year-old stepgranddaughter, testified that appellant reached under her clothes and touched her private area. The State introduced the victim's video-recorded interview with Karis Chastain of the Arkansas State Police Crimes Against Children Division. Chastain interviewed K.J., who described appellant “humping” her and digitally penetrating her vagina. Both appellant and his wife testified during the defense stage. Following a two-day jury trial, the jury convicted appellant of felony rape and sentenced him to thirty-six years' imprisonment in the Arkansas Department of Correction. The court of appeals affirmed his conviction and sentence in Henington v. State, 2010 Ark. App. 619, 378 S.W.3d 196.

Appellant timely filed a Rule 37 petition. In his petition, appellant alleged that his trial counsel, Bruce J. Bennett, failed to file a rape-shield motion and a request for an in camera hearing, pursuant to Arkansas's rape-shield statute, found at Arkansas Code Annotated section 16–42–101 (Repl.1999), and failed to investigate potential alternate sources of the victim's sexual knowledge. According to appellant, a hearing on a rape-shield motion would have revealed prior sexual conduct between the victim, K.J., and her brother, J.J.; an explanation for what Natalie Jones, the victim's mother, described as K.J.'s “raw” genital area; a motive for K.J. and J.J. “fabricating the story about [appellant] raping K.J. and ... a reasonable explanation for” K.J.'s raw genitalia; and explanations from J.J. and a neighborhood boy about K.J.'s prior sexual knowledge. The record demonstrates that appellant requested a hearing on his petition for postconviction relief.

The State responded that appellant failed to demonstrate how this evidence would have been admissible at trial, even if he had overcome the burden of proving it admissible under our rape-shield statutory provisions. The State contended that appellant did not show prejudice in counsel's failure to request a rape-shield hearing. Further, the State asserted that appellant's allegations in his Rule 37 petition were merely conclusory statements, and as a result, no hearing was required when appellant's allegations had no merit.

Without a hearing, the circuit court denied appellant's request for postconviction relief. On January 28, 2011, the circuit court entered its order, ruling that appellant's petition contained conclusory allegations and was without merit. From this order, appellant timely brings his appeal.

On appeal, appellant argues that the circuit court erred in denying relief on his petition without holding an evidentiary hearing and in failing to make specific written findings. This court has held that it will reverse the circuit court's decision granting or denying postconviction relief only when that decision is clearly erroneous. See Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007); Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). This court has stated that “[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.” Williams, 369 Ark. at 107, 251 S.W.3d at 292 (quoting Howard, 367 Ark. at 26, 238 S.W.3d at 31).

When considering an appeal from a circuit court's denial of a Rule 37 petition, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the circuit court clearly erred in holding that counsel's performance was not ineffective. Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783;Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). In making a determination of ineffective assistance of counsel, the totality of the evidence must be considered. Howard, supra. The benchmark for judging a claim of ineffective assistance of counsel must be “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.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052.

Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong analysis. First, a claimant must show that counsel's performance was deficient. Britt v. State, 2009 Ark. 569, 349 S.W.3d 290. Counsel is presumed effective, and allegations without factual substantiation are insufficient to overcome that presumption. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001) (per curiam). A petitioner, in claiming deficiency, must show that “counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Petitioner has the burden of overcoming the presumption by identifying specific acts and omissions that, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Williams, supra.

Second, a claimant must also show that this deficient performance prejudiced his defense so as to deprive him of a fair trial. Britt, supra. Petitioner must show that, even if counsel's conduct is shown to be professionally unreasonable, the judgment will stand unless petitioner can demonstrate that counsel's error had an actual prejudicial effect on the outcome of the proceeding. Strickland, 466 U.S. at 691, 104 S.Ct. 2052. 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, or in other words, that the decision reached would have been different absent the errors. Howard, supra. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in sentencing. Howard, 367 Ark. at 32, 238 S.W.3d at 36. 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. Howard, supra. “[T]here 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.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052. With this Strickland standard in mind, we turn to the issues raised by appellant.

For the first point on appeal, appellant argues that the circuit court erred in summarily denying his petition without an evidentiary hearing. Specifically, appellant asserts that his Rule 37 petition alleged facts sufficient to obtain an evidentiary hearing and that those facts include allegations that his trial counsel was ineffective for failing to file a motion for an in camera hearing, pursuant to Arkansas's rape-shield statute, and for failing to investigate other sources of the victim's prior sexual knowledge. Appellant further contends that his trial counsel's deficiency prejudiced him because it left the jury with no alternate explanation of the minor victim's prior knowledge of sexual matters.

Pursuant to Arkansas Rule of Criminal Procedure 37.3(a) (2011), the circuit court has the discretion to deny relief without a hearing. We have previously interpreted Rule 37.3 to provide that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003) (holding that it is undisputed that the trial court has discretion pursuant to Rule 37.3(a) to decide whether the files or records are sufficient to sustain the court's findings without a hearing). Pursuant to Rule 37.1, a petitioner has the burden of pleading “in concise, nonrepetitive, factually specific language” at least one cause of action that is cognizable under the rule, and he must plead facts that support his claim. SeeArk. R.Crim. P. 37.1(b); Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004); see generally Flowers v. State, 2010 Ark. 364, 370 S.W.3d 228 (per curiam) (citing Jamett v. State, 2010 Ark. 28, 358 S.W.3d 874 (per curiam)). In an evidentiary hearing, the petitioner faces the burden of supporting his allegations with evidence. SeeArk. R.Crim. P. 37.3(c); Johnson v. State, 2009 Ark. 541, 2009 WL 3681861;Flaherty v. State, 297 Ark. 198, 761 S.W.2d 167 (1988). Conclusory allegations that are unsupported by facts do not provide a basis for either an evidentiary hearing or postconviction relief. Nance v. State, 339 Ark. 192, 4 S.W.3d 501(1999).

In the present case, we duly note the following allegations in appellant's Rule 37 petition:

2. During the trial, the defense tried to bring out information about prior...