Barber v. State

• Decision Date: 11 February 2016
• Docket Number: No. CR–15–496,CR–15–496
• Citation: 482 S.W.3d 314
• Parties: Johnta Barber, Appellant v. State of Arkansas, Appellee.
• Court: Arkansas Supreme Court

482 S.W.3d 314

Johnta Barber, Appellant

v.State of Arkansas, Appellee.

No. CR–15–496

Supreme Court of Arkansas.

Opinion Delivered February 11, 2016

Johnta Barber, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellee.

PER CURIAM

This is an appeal from the denial of appellant Johnta Barber's pro se petition for postconviction relief filed pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure. For the reasons set forth below, the order of the circuit court is affirmed.

On January 8, 2009, Barber was convicted by a jury of aggravated robbery, kidnapping, possession of a firearm, discharging a firearm from a car, theft of property, aggravated assault, and fleeing. Barber was sentenced to an aggregate term of 684 months' imprisonment. These convictions arose from Barber's participation in a bank robbery along with two accomplices who, during the course of the robbery, forced three employees into the bank's vault at gunpoint.

On March 3, 2010, the Arkansas Court of Appeals affirmed the convictions, finding that they were supported by substantial evidence, and also finding that there was no speedy-trial violation. Barber v. State, 2010 Ark. App. 210, 374 S.W.3d 709. On April 21, 2010, Barber filed a timely, verified Rule 37.1 petition, and, on December 23, 2014, he filed an amended petition.

In his original Rule 37.1 petition, Barber raised ineffective-assistance-of-counsel claims based on the following allegations of error: 1) counsel's failure to challenge the sufficiency of the evidence on lesser-included offenses and failure to request jury instructions on lesser-included offenses; 2) counsel's failure to move for and obtain a mistrial based on the allegation that the prosecutor had improperly coached the State's witnesses; 3) counsel's failure to challenge the introduction of prior-conviction evidence; and 4) counsel's purposely delaying the trial and otherwise failing to protect Barber's constitutional right to a speedy trial by requesting unnecessary continuances. In addition to the aforementioned ineffective-assistance-of-counsel claims, Barber contended that the judgment of conviction is illegal on its face in that it reflects that he was convicted of three Y felony kidnapping charges, even though the trial court had reduced the classification of each kidnapping charge to a B felony. Barber's amended petition raised one additional claim for relief, that his right to a speedy trial had been violated. Otherwise, the amended petition reasserted allegations made in the original petition.

On January 20, 2015, the circuit court held a preliminary hearing where it considered whether the issues raised in both the original and amended petitions entitled Barber to an evidentiary hearing. The court ruled that Barber had not raised sufficient facts to justify an evidentiary hearing. On March 19, 2015, the circuit court issued a letter outlining its reasons for denying Barber's claims for postconviction relief. On April 9, 2015, Barber filed a motion asking, among other things, that the circuit court rule on the ineffective-assistance- of-counsel claims set forth in grounds two through four of his Rule 37 petition. Barber subsequently filed a notice of appeal on April 17.2015, challenging the findings encompassed in the circuit court's letter. On April 28, 2015. after the notice of appeal had been filed, the circuit court filed its formal order denying relief and reiterating the findings set forth in its previous letter.¹ The circuit court found that Barber's speedy-trial claim had already been addressed and rejected on direct appeal, that Barber had failed to present factual substantiation of his entitlement to lesser-included-offense instructions, that Barber had failed to substantiate his allegation pertaining to the prosecution's abuse of subpoena power, and that Barber had failed to demonstrate that his kidnapping charge was incorrectly classified as a Y felony.

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. Conley v. State, 2014 Ark. 172, at 4, 433 S.W.3d 234, 239. A finding is clearly erroneous when, although there is evidence to support it. the appellate court, after reviewing the entire record, is left with the definite and firm conviction that a mistake has been committed. Sartin v. State, 2012 Ark. 155, at 3, 400 S.W.3d 694, 697.

For his first point on appeal. Barber claims that his constitutional right to a speedy trial was violated. Assertions of trial error, even those of constitutional dimension, must be raised at trial and on appeal, and are not cognizable under Rule 37.1. Watson v. State, 2012 Ark. 27, at 3, 2012 WL 234634 (per curiam). Here, the speedy trial argument was raised and rejected on direct appeal. Barber, 2010 Ark. App. 210, at 12–13, 374 S.W.3d at 718. The circuit court did not clearly err when it summarily dismissed this claim.

Barber's second and third points raise multiple ineffective-assistance-of-counsel allegations. When considering an appeal from a circuit court's denial of a Rule 37.1 petition based on ineffective assistance of counsel, 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 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 Strickland, the effectiveness of counsel is assessed by a two-prong standard. First, Barber 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. Williams v. State, 369 Ark. 104, 108, 251 S.W.3d 290, 292–93 (2007). In order to demonstrate counsel error, a petitioner must show that his counsel's performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, at 4, 386 S.W.3d 477, 481 (per curiam). Furthermore, there is a strong presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance, and a petitioner 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. Bryant v. State, 2013 Ark. 305, at 2, 429 S.W.3d 193, 196 (per curiam).

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, Barber 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, i.e., the decision reached would have been different absent the errors. 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. Conclusory allegations unsupported by facts and which provide no showing of prejudice are insufficient to warrant Rule 37 relief. Nelson v. State, 344 Ark. 407, 413, 39 S.W.3d 791, 795 (2001) (per curiam).

Barber asserted in ground two of his amended petition, and reasserts in his second point on appeal, that his counsel purposely delayed his trial and otherwise failed to protect his right to a speedy trial.

While the circuit court summarily dismissed Barber's speedy-trial claim, it did not rule on this issue as it pertained to an ineffective-assistance-of-counsel claim. Where the trial court provides written findings on at least one, but less than all, of the petitioner's claims, we have held that an appellant has an obligation to obtain a ruling on any omitted issues if they are to be considered on appeal. Cowan v. State, 2011 Ark. 537, at 3, 2011 WL 6275694 (per curiam).

Here, Barber filed a motion to modify the circuit court's order before filing the notice of appeal and specifically requested a ruling on ground two of his petition. The circuit court issued its order denying his claim, but it did not address the motion to modify nor did it rule on the omitted issues cited in the motion. Where a petitioner requests the circuit court to provide a ruling on an omitted issue and the circuit court fails to do so, he must file for a writ of mandamus in this court, asking this court to direct the circuit court to act on the motion to provide the requested rulings. Strain v. State, 2012 Ark. 184, at 7, 423 S.W.3d 1, 6. Because a motion to address an omitted issue in a Rule 37 petition is ministerial and is not discretionary, a writ of mandamus is the only remedy available to a postconviction petitioner. Id. ; see Carter v. Chandler, 2012 Ark. 252, at 2, 2012 WL 1950250 (per curiam) (holding that the "deemed denied" provision of Ark. R.App. P.—Civ. 4(b) does not apply to Rule 37 appeals and a petitioner's recourse is through a writ of mandamus).

Barber's third point on appeal raises his remaining claims of ineffective assistance of counsel, which are as follows: his counsel failed to challenge the sufficiency of any lesser-included offenses or to submit jury instructions on lesser-included offenses; failed to move for a mistrial because the prosecutor had improperly coached witnesses before the trial of Barber's two codefendants; failed to challenge evidence of prior convictions introduced during the sentencing phase; and finally, that counsel was unprepared for trial. The circuit court's order denying Barber's petition did not address the last two allegations of error with respect to evidence of criminal history and trial preparation, despite Barber's motion to modify. Barber's failure to obtain...