Dodge v. State

• Court: Arkansas Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Dodge v. State, 2014 Ark. 116, No. CR-13-764 (Ark. Mar 13, 2014)
• Decision Date: 13 March 2014
• Docket Number: No. CR-13-764,CR-13-764
• Parties: CHRISTOPHER DEWAYNE DODGE APPELLANT v. STATE OF ARKANSAS APPELLEE

2014 Ark. 116

CHRISTOPHER DEWAYNE DODGE APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-13-764

SUPREME COURT OF ARKANSAS

Opinion Delivered March 13, 2014

PRO SE MOTION FOR RECORD AND

MOTION FOR EXTENSION OF TIME

TO FILE BRIEF [SEBASTIAN

COUNTY CIRCUIT COURT,

GREENWOOD DISTRICT, NO. 66CR-

11-107]

HONORABLE STEPHEN TABOR,

JUDGE

APPEAL DISMISSED; MOTIONS

MOOT.

PER CURIAM

In 2012, appellant Christopher Dewayne Dodge was found guilty by a jury of three counts of rape and one count of attempted rape of a minor, and an aggregate sentence of 1152 months' imprisonment was imposed. On appeal, appellant did not challenge the sufficiency of the evidence. Instead, he challenged the trial court's denial of his motion to suppress his statement based on the violation of his right to an attorney. The Arkansas Court of Appeals affirmed. Dodge v. State, 2013 Ark. App. 247, __ S.W.3d _.

Subsequently, appellant timely filed in the trial court a verified, pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2012), alleging ineffective assistance of counsel as well as trial errors based on a violation of the prohibition against double jeopardy, the admission of a coerced confession, and the filing of a defectiveinformation. The trial court denied the petition without a hearing.¹ Appellant timely lodged an appeal of that order in this court. Now before us are appellant's motions for record and for extension of time to file his brief.

We need not consider the merits of the motions because it is clear from the record that appellant could not prevail if an appeal were permitted to go forward. An appeal from an order that denied a petition for postconviction relief will not be allowed to proceed where it is clear that the appellant could not prevail. Holliday v. State, 2013 Ark. 47 (per curiam); Bates v. State, 2012 Ark. 394 (per curiam); Martin v. State, 2012 Ark. 312 (per curiam). Accordingly, the appeal is dismissed, and the motions are moot.

A review of the petition and the order reveals no error in the trial court's decision to deny relief. When considering an appeal from a trial 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 (1984), the trial court clearly erred in holding that counsel's performance was not ineffective. Taylor v. State, 2013 Ark. 146, ___ S.W.3d ___.

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 trialcannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance 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, 251 S.W.3d 290 (2007). There is a strong presumption that trial counsel's conduct falls within the wide range of professional assistance, and an appellant 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. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam). Second, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, ___ S.W.3d ___. A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner 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. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). 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. Id. Unless a petitioner makes both showings, it cannot be said that the convictionresulted from a breakdown in the adversarial process that renders the result unreliable. Id. "[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.

In his petition, appellant argued that counsel was ineffective for failing to challenge the information as defective or to request a bill of particulars. Specifically, he contended that the information did not provide him with sufficient notice of the charged crimes necessary to prepare his defense because it did not include the time or place that the State was alleging that each rape had occurred. Appellant argued that the State was required to include these facts in the information because it was aware of them at the time that the charging document was filed. He further argued that counsel was ineffective for failing to object to the introduction of evidence of the location of the charged crimes because the location was not included in the information.

In the information and two amended informations, the State alleged that appellant committed four counts of rape in violation of Arkansas Code Annotated section 5-14-103 (Supp. 2009) in Sebastian County. As to each count, the State described the offense, alleging that appellant did "unlawfully and feloniously engage in sexual intercourse or deviate sexual activity with A.N., who is less than 14 years of age." In the second amended information, the date for each count was amended to allege that each crime had occurred between January 1, 2009, and May 3, 2011. Counsel for appellant also filed a motion for discovery to which the State responded. This court has held that an information is sufficient if it names the defendant, theoffense charged, the statute under which the charge was made, the court and county where the alleged offense was committed, and if it set forth the principal language of the statute and the asserted facts constituting the offense. Anderson v. State, 2013 Ark. 332 (per curiam); Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997) (per curiam). The minimal requirements for a proper information are sufficient to apprise a defendant of the offense. Anderson, 2013 Ark. 332; England v. State, 234 Ark. 421, 352 S.W.2d 582 (1962). The function of a bill of particulars is to require the State to set forth the alleged criminal act in detail and with sufficient certainty to apprise the defendant of the crime charged and enable him to prepare his defense. Norris v. State, 2013 Ark. 205, __ S.W.3d __ (per curiam); Grant v. State, 2010 Ark. 286, 365 S.W.3d 894 (per curiam); see also Ark. Code Ann. § 16-85-301(a) (Repl. 2005). Where the information is definite in specifying the offense being charged, the charge itself constitutes a bill of particulars. Norris, 2013 Ark. 205, __ S.W.3d __. Further, even where no bill of particulars is filed, there is no prejudice to the accused on that account when the State complies with its discovery obligation. Id.; Green v. State, 310 Ark. 16, 832 S.W.2d 494 (1992).

Here, appellant cannot demonstrate that the defense was unaware of the offenses charged and the conduct that was alleged to have given rise to the charges. See Norris, 2013 Ark. 205; __ S.W.3d __. He failed to state a valid ground on which counsel could have raised any objection based on a defective information or argued a meritorious basis in support of a bill of particulars. Counsel cannot be ineffective for failing to make an objection or argument that is without merit. Jordan v. State, 2013 Ark. 469 (per curiam). Thus, counsel cannot be considered ineffective under the standards set forth in Strickland based on his decision not to challenge the information orobject to evidence of the location of the crimes.²

Similarly, appellant argued that counsel was ineffective for failing to challenge the filing of the second amended information, in which the State amended the date range that the charged crimes had occurred, or move for a continuance based on its filing. Appellant based his contention on the allegation that the second amended information had been filed ten days before trial when the State had known for eight months prior to its filing that the dates in the first amended information did not encompass the dates of the incidents giving rise to the charges. He argued that, because the second amended information extended the date range during which he had been accused of committing the rapes by 120 days, "the amendment effectively added an additional 120 days of the accused's life that must be defended."

The State is entitled to amend an information at any time prior to the case being submitted to the jury as long as the amendment does not change the nature or the degree of the offense charged or create an unfair surprise. Green v. State, 2012 Ark. 19; 386 S.W.3d 413; see also Ark. Code Ann. § 16-85-407(b) (Repl. 2005). Appellant cannot show that the amendment changed the nature or degree of the charges or created an unfair surprise. Moreover, he failed to state any convincing argument that his defense was prejudiced by the timing of the filing of the second amended information to support a motion for continuance. As no legal basis...