Bond v. State

• Decision Date: 25 July 2013
• Docket Number: No. CR–11–565.,CR–11–565.
• Citation: 429 S.W.3d 185,2013 Ark. 298
• Parties: Kelton Esquire BOND, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2013 Ark. 298

429 S.W.3d 185

Kelton Esquire BOND, Appellant

v.STATE of Arkansas, Appellee.

No. CR–11–565.

Supreme Court of Arkansas.

July 25, 2013.

Kelton Esquire Bond, pro se appellant.

Dustin McDaniel, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

PER CURIAM.

In 2008, appellant Kelton Esquire Bond was convicted by a jury of multiple drug-related offenses and sentenced to an aggregate term of 115 years' imprisonment.¹ The Arkansas Court of Appeals affirmed the judgment. Bond v. State, 2010 Ark. App. 664, 2010 WL 3934599. Appellant subsequently filed in the circuit court a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2008), a motion for an evidentiary hearing, and a motion to appoint counsel. The circuit court denied appellant's petition without a hearing and further denied appellant's motion to appoint counsel. Appellant now brings this appeal.² Our jurisdiction is pursuant to Rule 37 and Arkansas Supreme Court Rule 1–2(a)(8) (2012).

This court does not reverse a denial of postconviction relief unless the circuit court's findings are clearly erroneous. Banks v. State, 2013 Ark. 147, 2013 WL 1491272. 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. Hickey v. State, 2013 Ark. 237, 428 S.W.3d 446, 2013 WL 2361052 (per curiam).

On appeal, appellant argues that trial counsel was ineffective for the following reasons: (1) failing to impeach one of the State's witnesses; (2) failing to call mitigation witnesses during the sentencing phase of trial; (3) representing appellant despite an alleged conflict of interest; (4) failing to object to comments made by the State in closing arguments; (5) abandoning appellant's appeal; (6) failing to prepare for trial, communicate with appellant, and call witnesses during the penally phase of trial; (7) failing to challenge the jury-selection process. We find no error and affirm the denial of postconviction relief on all points.

In an appeal from a circuit court's denial of a petition for postconviction relief under Rule 37.1, the sole question presented is whether, based on the totality of the evidence, the circuit court clearly erred in holding that counsel's performance was not ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Hickey, 2013 Ark. 237, 428 S.W.3d 446, 2013 WL 2361052. Under the two-prong Strickland test, a petitioner raising a claim of ineffective assistance of counsel must first 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. Id. A petitioner making an ineffective-assistance-of-counsel claim must show that counsel's performance fell below an objective standard of reasonableness. Dansby v. State, 347 Ark. 674, 66 S.W.3d 585 (2002). In doing so, the claimant must overcome a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830.

With respect to the second prong of the test, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he or she was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. Such a showing requires that the petitioner demonstrate a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). 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. Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process rendering the result unreliable. Id. There is no reason for a court deciding an ineffective-assistance-of-counsel claim to address both components of the Strickland standard if the appellant makes an insufficient showing on one of the prongs. Id. (citing Strickland, 466 U.S. at 697, 104 S.Ct. 2052).

As his first point on appeal, appellant argues that the circuit court erred in denying relief on his claim that counsel was ineffective in failing to impeach one of the State's witnesses. Specifically, appellant asserts that the testimony of Officer Nathan Atchison regarding a confiscated lockbox containing cocaine, other drug paraphernalia, and a utility-payment receipt bearing appellant's name was a “complete fabrication.” Appellant alleged in his petition that had counsel impeached the testimony of Officer Atchison, the following facts would have been revealed: (1) the lockbox was not located in appellant's residence; (2) the key to the lockbox was not found on appellant's person; (3) the utility-payment receipt was not found in the lockbox. Appellant further asserted that Officer Atchison's testimony could have been impeached through the testimony of Officers Dana Winn and Jared Crabtree, both of whom, he contended, would have testified in accordance with his allegations. The circuit court denied appellant's request for postconviction relief on this point, finding that appellant's allegations were not supported by the record and that appellant failed to show prejudice.

Contrary to appellant's assertions, counsel could not have impeached Officer Atchison's testimony regarding the location of the lockbox and key because Officer Atchison did not testify that the lockbox was found in appellant's residence or that the key was found on appellant's person. Rather, Officer Atchison's testimony indicated that the lockbox was retrieved from a nearby residence where appellant was located prior to the execution of the search warrant and that the key to the lockbox was found in appellant's residence after appellant told him where it could be found. Officer Atchison's testimony regarding the location of the lockbox and key was corroborated by the testimony of Officers Winn and Crabtree.

As for Officer Atchison's testimony regarding appellant's utility-payment receipt that was found in the lockbox, the trial record does not support that proper impeachment would have revealed inconsistences in Officer Atchison's testimony; nor does the record support the allegation that counsel failed to impeach Officer Atchison's testimony in this regard. Appellant alleged in his petition that had counsel properly impeached Officer Atchison's testimony by questioning Officers Winn and Crabtree regarding the lockbox and its contents, he would have been able to show the jury that the utility-payment receipt bearing appellant's name was not found in the lockbox. However, Officers Winn and Crabtree were, in fact, questioned regarding the contents of the lockbox. Officer Winn testified on direct and on cross-examination that while her report stated that the receipt was found in the same residence as the lockbox, her recollection is that it was found inside of the lockbox. Finally, Officer Crabtree testified as to his recollection of the contents of the lockbox, stating that he remembered finding a carpet-deodorizer container with a false bottom that contained cocaine inside and small plastic bags.

The burden is entirely on the petitioner in a Rule 37.1 proceeding to provide facts that affirmatively support the claims of prejudice. Hickey, 2013 Ark. 237, 428 S.W.3d 446, 2013 WL 2361052. Conclusory allegations unsupported by factual information of counsel's ineffectiveness do not provide a basis for postconviction relief. Hogan v. State, 2013 Ark. 223, 2013 WL 2295431 (per curiam); Adams v. State, 2013 Ark. 174, 427 S.W.3d 63. Appellant's allegations of ineffectiveness are not supported by the record, and appellant does not offer factual substantiation to establish that counsel failed to properly impeach the testimony of Officer Atchison. Thus, appellant's assertion that counsel was ineffective in failing to impeach Officer Atchison's testimony is unfounded, and the circuit court did not err in denying relief on this point.

As his second point on appeal, appellant argues that the circuit court erred in denying relief on his claim that counsel was ineffective because he failed to present mitigating issues or call witnesses during the sentencing phase of trial. Specifically, appellant asserts that counsel did not call the three mothers of his children who would have testified, according to appellant, that he was a caring father. The circuit court denied relief on this point, finding that the subject-matter to which appellant contended his proposed three witnesses would have testified was covered by the testimony of appellant and his mother, both of whom testified that appellant was a caring, loving father. The circuit court further ruled that appellant did not adequately show prejudice as a result of counsel's failure to question the three proposed witnesses.

For ineffective-assistance-of-counsel claims based on failure to call a witness, this court has held that it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Smith v. State, 2010 Ark. 137, 361 S.W.3d 840 (per curiam). This appellant failed to do. Thus, the allegation was conclusory and did not merit further consideration.

Moreover, the failure to call witnesses whose testimony would be cumulative to testimony already presented does not deprive the defense of vital evidence. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. As the circuit court noted in its order, the mitigating factors to...