Butler v. State

• Decision Date: 13 October 2011
• Docket Number: No. CR 09–1318.,CR 09–1318.
• Citation: 2011 Ark. 435,384 S.W.3d 526
• Parties: Ellis Charles BUTLER, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2011 Ark. 435

384 S.W.3d 526

Ellis Charles BUTLER, Appellant

v.STATE of Arkansas, Appellee.

No. CR 09–1318.

Supreme Court of Arkansas.

Oct. 13, 2011.

Stuart Carl Vess, North Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.

PER CURIAM.

Appellant Ellis Charles Butler appeals the denial of his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2007). He argues on appeal that he did not receive effective assistance of counsel. We affirm.

This case has a complicated procedural history. In 1997, appellant was convicted by a Faulkner County jury of three counts of rape and four counts of violation of a minor in the first degree. He was sentenced to sixteen years on each count of rape and three years on each count of first-degree violation of a minor, to run consecutively for a total of sixty years in the Arkansas Department of Correction. He appealed those convictions, and this court reversed and remanded because the trial court erred in failing to grant a continuance when appellant hired new counsel. See Butler v. State, 339 Ark. 429, 5 S.W.3d 466 (1999). Appellant was retried in 2001, and the jury convicted him of three counts of rape and sentenced him to thirty-two years on each count to be served consecutively for a total of ninety-six years in the Arkansas Department of Correction. This court affirmed that conviction. See Butler v. State, 349 Ark. 252, 82 S.W.3d 152 (2002). Thereafter, due to a mistake by this court's clerk when issuing the mandate, the circuit court denied appellant's timely pro se petition for postconviction relief pursuant to Rule 37.1 as untimely. This court reversed and again remanded the case to the trial court to consider appellant's postconviction petition for relief. See Butler v. State, CR 03–1161, 2004 WL 2610063 (Ark. Nov. 18, 2004) (unpublished per curiam). On remand, the trial court entered an order denying with prejudice two Rule 37.1 petitions filed pro se by appellant and denying appellant's motion, filed by counsel, for leave to file an amended petition. This court again reversed and remanded, holding that the trial court was without jurisdiction to rule on the pro se motions and that the trial court had abused its discretion in denying counsel's motion for leave to amend the Rule 37.1 petition. See Butler v. State, 367 Ark. 318, 239 S.W.3d 514 (2006) (per curiam).

On March 9, 2007, appellant filed, through counsel, an amended Rule 37.1 petition, alleging that his trial counsel was ineffective (1) for failing to object, move for mistrial, or move for a reduction in appellant's sentence on the grounds that appellant was a victim of vindictive sentencing in violation of the Fifth and Fourteenth Amendments; (2) for failing to specifically inquire, object, or move for mistrial when the trial court had communications with a juror and when the trial judge gave an implied “dynamite charge,” instructing the jury to continue deliberating after a juror informed the court that he wanted to acquit; (3) for failing to move to strike a potential juror for cause during voir dire; and (4) for referring during voir dire to the fact that appellant had previously been tried for rape.

On October 1, 2009, the circuit court entered an order denying appellant's Rule 37.1 petition. It found that the burden to prove vindictiveness with regard to sentencing was on the appellant, that appellant failed to present any evidence of actual vindictiveness, and that his trial counsel's failure to object on that basis did not fall below an objective standard of reasonableness to constitute ineffective assistance; that any concern regarding the trial judge's instruction to the jury to continue deliberations was addressed by the Arkansas Supreme Court on direct appeal when it held that the trial court did not abuse its discretion in denying appellant's motion for mistrial; that appellant's trial counsel's decision not to strike a potential juror for cause was trial strategy and not proper grounds for postconviction relief; and that appellant failed to show that his counsel's reference to appellant's previous rape case during voir dire fell below an objectively reasonable standard, and appellant did not establish that there was a reasonable probability that, but for the “unprofessional error,” the outcome of appellant's case would have been different. Appellant filed a timely notice of appeal from the circuit court's order, and the issues are properly before this court at this time.

In an appeal from a trial court's denial of postconviction relief on a claim of ineffective assistance of counsel, the question presented is whether, 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), and based on the totality of the evidence, the trial court clearly erred in holding that counsel's performance was not ineffective. Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007) (per curiam). 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.

Actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007). Under the Strickland test, a claimant must show that counsel's performance was deficient, and the claimant must also show that this deficient performance prejudiced his defense so as to deprive him of a fair trial. Walker v. State, 367 Ark. 523, 241 S.W.3d 734 (2006) (per curiam). As to the prejudice requirement, a petitioner must show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Moreover, matters of trial strategy and tactics, even if improvident, generally do not provide a basis for ineffective-assistance claims. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004).

I. Vindictive Sentencing

For his first argument on appeal, appellant maintains that the circuit court erred in finding that his trial counsel was not ineffective for failing to object, move for mistrial, or move for a reduction of sentence on the basis of vindictive sentencing. Specifically, appellant maintains that, after he successfully appealed his first conviction, he was retried, convicted a second time, and sentenced to thirty-six years longer than he had been sentenced to originally.Appellant claims that North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), stands for the proposition that a presumption arises where a trial judge sentences a defendant to a harsher sentence on retrial and that the sentencing court is required to fully explain why the sentence is more severe after a new trial. Appellant maintains that the record of his second trial is devoid of any affirmative facts that justified a more severe sentence, and, therefore, his trial counsel was derelict in not objecting on that basis.

Appellant is correct that the Supreme Court in Pearce established a presumption of vindictiveness where the defendant is punished more severely on retrial. 395 U.S. at 726, 89 S.Ct. 2072 (“[W]henever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear ... [and] must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding”). However, the Pearce decision has been limited in subsequent Supreme Court jurisprudence. In Chaffin v. Stynchcombe, the Court held that the rendering of a more severe penalty by a jury upon retrial does not give rise to the presumption so long as the jury is not informed of the prior sentence and the second sentence is not otherwise shown to be a product of vindictiveness. 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973). We have noted that Chaffin does not require that the jury be unaware that the appellant has previously been tried, just that they not know the specific sentence that he received. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985). The Chaffin Court, in discussing the Pearce presumption, stated that it

was not written with a view to protecting against the mere possibility that, once the slate is wiped clean and the prosecution begins anew, a fresh sentence may be higher for some valid reason associated with the need for flexibility and discretion in the sentencing process. The possibility of a higher sentence was recognized and accepted as a legitimate concomitant of the retrial process.

Chaffin, 412 U.S. at 25, 93 S.Ct. 1977. Moreover, the Court observed in Texas v. McCullough, that a jury, unlike a judge who has been reversed, will have no personal stake in the prior conviction and no motivation to engage in self-vindication. 475 U.S. 134, 138, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). In McCullough, the defendant received a greater sentence from the trial judge following retrial than he had received from the jury in his first trial. The Court specifically stated that “[t]he presumption is ... inapplicable because different sentencers assessed the varying sentences that McCullough received.” Id. at 140, 106 S.Ct. 976;see also Hudgens v. State, 324 Ark. 169, 919 S.W.2d 939 (1996) (holding that the trial court failed to establish sufficient facts to overcome presumption of vindictiveness where the same trial judge sentenced defendant in the original trial and on retrial).

In Alabama v. Smith, the Court held that the Pearce presumption of vindictiveness does not apply when a...