Cothren v. State

• Decision Date: 10 May 2001
• Docket Number: 99-597
• Citation: 42 S.W.3d 543
• Parties: Leslie COTHREN v. STATE of Arkansas CR 99-597 Supreme Court of Arkansas
• Court: Arkansas Supreme Court

Leslie COTHREN v STATE of Arkansas

CR 99-597

Supreme Court of Arkansas

May 10, 2001

Appeal from Cleburne Circuit Court; John Dan Kemp, Judge; affirmed.

1. Criminal procedure -- denial of Ark. R. Crim. P. 37 petition -- standard of review. -- The supreme court will not reverse the denial of an Ark. R. Crim. P. 37 petition unless the trial court's decision is clearly erroneous; the question on appeal is whether, based upon the totality of the evidence, the trial court clearly erred in holding that counsel's performance was not ineffective under the standard set in Strickland v. Washington, 466 U.S. 668 (1984).

2. Attorney & client -- claim of ineffective assistance -- factors required to prevail. -- Under the Strickland standard for assessing the effectiveness of trial counsel, the petitioner must show first that counsel's performance was deficient; this requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment; a court must indulge in a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance; second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel's errors were so serious as to deprive petitioner of a fair trial; unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that rendered the result unreliable; the petitioner must show there was a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors; a reasonable probability is a probability sufficient to undermineconfidence in the outcome of the trial.

3. Attorney & client -- ineffective trial strategy -- not basis for meeting Strickland test. --A lawyer's choice of trial strategy that proved ineffective is not a basis for meeting the Strickland test.

4. Criminal procedure -- postconviction relief -- error so fundamental as to render conviction void may qualify petitioner for. -- A petitioner may also qualify for Rule 37 relief, regardless of trial counsel's performance, if he demonstrates error so fundamental as to render the judgment of conviction void and subject to collateral attack; a violation of double jeopardy is just such an error.

5. Criminal procedure -- double-jeopardy protection -- fundamental right that can be raised for first time in Rule 37 petition. -- A violation of double jeopardy is an error so fundamental that it renders the judgment of conviction void, and so a double-jeopardy claim can be raised for the first time in a Rule 37 petition.

6. Constitutional law -- Double Jeopardy Clause -- protection afforded. -- The Double Jeopardy Clauses of the United States and Arkansas Constitutions protect criminal defendants from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.

7. Criminal law -- double jeopardy -- Blockburger test. -- In Blockburger v. United States, 284 U.S. 299 (1932), the U.S. Supreme Court held that the double jeopardy bar applies in the multiple-punishment context where the two offenses for which the defendant is punished cannot survive the "same-elements" test; the same-elements test, commonly referred to as the "Blockburger" test, is as follows: where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not; a single act may be an offense against two statutes, and if each statute requires proof of an additional fact that the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

8. Criminal law -- manufacture -- defined. -- "Manufacture" means production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that the term does not include preparation or compounding of a controlled substance by an individual for his own use [Ark. Code Ann. § 5-64-101 (Repl. 1997)].

9. Criminal law -- possession of controlled substance is lesser- included offense of manufacturing that substance -- conviction of both crimes may violate double jeopardy.-- Possession of a controlled substance is lesser-included offense of manufacturing that substance; consequently, conviction of both crimes, if arising from the same course of conduct, violates double jeopardy.

10. Criminal law -- possession of controlled substance with intent to deliver is not lesser-included offense of manufacturing controlled substance -- each offense requires proof of element not common to other offense. -- In applying the Blockburger test to the statutes at issue, it was evident that possession of a controlled substance with intent to deliver was not a lesser-included offense of manufacturing a controlled substance; a conviction for manufacturing under Ark. Code Ann. § 5-64-101(m) (Repl. 1997) requires proof that the defendant produced, prepared, propagated, compounded, converted, or processed a controlled substance; possession with intent to deliver under Ark. Code Ann. § 5-64-401 (Supp. 1999) requires no such proof; furthermore, a conviction for manufacturing does not require proof of intent to deliver, an element essential to conviction for possession with intent to deliver; because the two offenses for which appellant was convicted each required proof of an element not common to the other, possession with intent to deliver was not a lesser-included offense of manufacturing a controlled substance.

11. Criminal law -- conviction for manufacturing & possession of controlled substance --two separate courses of conduct involved. -- The trial court's determination that appellant's conduct was not one continuing course, but two separate courses of conduct, because the manufacturing conviction arose out of the manufacturing process that took place inside thedental lab, and the possession-with-intent-to-deliver conviction arose out of appellant's possession of the product as it was completing its process of production in the back of the pickup truck, was not clearly erroneous.

12. Criminal law -- manufacturing controlled substance -- substance need not be in final form. -- A substance does not have to be in a form to be sold before "manufacturing" occurs.

13. Criminal law -- continuing offense -- defined. -- A "continuing offense" is one that is a "continuous act or series of acts set on foot by a single impulse and operated by an unintermittent force."

14. Criminal law -- continuing offense -- test for determining. -- The test to determine if a situation involves a continuing offense is whether the individual acts are prohibited, or the course of action which they constitute; if the former, then each act is punishable separately; if the latter, there can be but one penalty; when the impulse is single, but one indictment lies, no matter how long the action may continue; if successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie; examples of continuing offenses include nonsupport, promoting prostitution, and erecting or maintaining a gate across a public highway.

15. Criminal law -- conviction on two offenses did not violate double-jeopardy principles --trial court did not err in denying petition for postconviction relief. -- Where appellantcommitted the offense of manufacturing a controlled substance inside the dental lab before he left the premises, the fact that the methamphetamine was still "cooking" when he was found to be in possession of it with intent to deliver did not cause that offense and the offense of possession of a controlled substance to be merged into one continuing course of conduct; it was the individual acts of manufacture and possession with intent to deliver that were prohibited, not the continuing course of action; therefore, appellant's conviction of both offenses did not violate double-jeopardy principles, and the trial court did not clearly err in denying the petition for postconviction relief.

16. Appeal & error -- allegations of trial error must be raised on direct appeal -- error can be raised for first time under Rule 37 only if it is so fundamental as to render judgment void & subject to collateral attack. -- Appellant could not raise the argument that the trial court erred when it did not, on its own motion, seek to remedy alleged prejudice caused by the prosecutor's closing remarks for the first time in a Rule 37 proceeding; this was an allegation of trial error that should have been raised on direct appeal; such an error can only be raised for the first time under Rule 37 if it is so fundamental as to render the judgment void and subject to collateral attack; a trial error involving a remark made by a prosecutor during closing argument is not fundamental.

17. Attorney & client -- claim of ineffective assistance -- failure to object during closing within wide range of permissible professional conduct. -- Experienced advocates might differ about when, or if, objections are called for since, as a matter of trial strategy, furtherobjections from counsel may have succeeded in making the prosecutor's comments seem more significant to the jury; because many lawyers refrain from objecting during opening statement...