Magness v. State, CR–14–620

• Decision Date: 30 April 2015
• Docket Number: No. CR–14–620,CR–14–620
• Citation: 461 S.W.3d 337,2015 Ark. 185
• Parties: John W. Magness, Appellant v. State of Arkansas, Appellee
• Court: Arkansas Supreme Court

2015 Ark. 185

461 S.W.3d 337

John W. Magness, Appellant

v.State of Arkansas, Appellee

No. CR–14–620

Supreme Court of Arkansas.

Opinion Delivered April 30, 2015

John W. Magness, pro se appellant.

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

Opinion

PER CURIAM

After a 2011 jury trial, appellant John W. Magness was convicted of four counts of fourth-degree sexual assault, possession of a firearm by a felon, two counts of fleeing, and resisting arrest. The judgment reflects that he received an aggregate sentence of 300 months' imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed the judgment. Magness v. State, 2012 Ark. App. 609, 424 S.W.3d 395. Magness then filed in the trial court a timely pro se petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2014). The trial court dismissed and denied the petition. This appeal followed.

Magness asserts as grounds for his appeal that the trial court erred in finding that each of the three attorneys who represented him was not ineffective, that the trial court erred in failing to grant postconviction relief because his trial attorney had committed suicide, and that the trial court incorrectly relied on a case decided after Magness's petition was filed when it denied relief on his claim that there had been an illegal search and seizure. Magness additionally alleges that the State failed to show that he was not entitled to Rule 37 relief and that the trial court's written findings were not adequate under Arkansas Rule of Criminal Procedure 37.3. We find no reversible error and affirm. Magness's motion for oral argument is denied.¹

This court does not reverse the grant or denial of postconviction relief unless the trial court's findings are clearly erroneous. Young v. State, 2015 Ark. 65, 2015 WL 854754. 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.

The trial court conducted two hearings on the Rule 37.1 petition. While it took no evidence on the issues, the order denying postconviction relief reflects that the trial court took into consideration pleadings filed by the parties and the arguments made in the hearings.² Because the court granted hearings on the matter, Rule 37.3(c) required that the court determine the issues and provide written findings of fact and conclusions of law with respect to those issues.

This court has held it that is mandatory that the trial court comply with Rule 37.3(c)'s requirement to provide written findings of fact and conclusions of law on every point addressed at a hearing on a Rule 37.1 petition. Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam). We remand when the findings provided are not adequate for our review, and we have consistently remanded when the trial court failed to enter any written findings following a hearing. Id. Where the trial court provides written findings on at least one, but less than all of the claims in the petition, however, we have held that an appellant has an obligation to obtain a ruling on any omitted issues to be considered on appeal.³ Id. Here, the findings that the trial court included in the order are adequate for our review.

Magness's first two points on appeal concern his claims of ineffective assistance of counsel. In his Rule 37.1 petition, appellant alleged ineffective assistance by the three attorneys who represented him. Our review of claims of ineffective assistance of counsel follows the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under that two-prong analysis, to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced his defense. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895.

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 trial cannot be relied on as having produced a just result.”Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29. To satisfy the first prong of the Strickland test, a postconviction petitioner 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. Mister v. State, 2014 Ark. 445, 446 S.W.3d 624. There is a strong presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance. Young, 2015 Ark. 65, 2015 WL 854754. The 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. Id.

To satisfy the second prong of the test and show that he was so prejudiced that he was deprived of a fair trial, a petitioner must demonstrate a reasonable probability that the decision reached would have been different absent counsel's errors. Mister, 2014 Ark. 445, 446 S.W.3d 624. The burden is entirely on the claimant to provide facts that affirmatively support his or her claims of prejudice. Stewart v. State, 2014 Ark. 419, 443 S.W.3d 538 (per curiam). Neither conclusory statements nor allegations without factual substantiation are sufficient to overcome the presumption that counsel was effective, and such statements and allegations will not warrant granting a Rule 37.1 petition. Id.

The first attorney who represented Magness and that Magness alleges failed to effectively represent him was Ralph Blagg. The basis for the claim was that Blagg made a statement that Magness was in possession of a gun found at his residence. The statement was made during a pretrial hearing on a motion to suppress. The trial court found that, because the statement was made as part of an argument to establish standing to challenge the search, the decision to make the statement was a reasonable strategic decision.

The search at issue in the hearing was conducted at a cabin owned by Leo Phillips. Phillips testified at the pretrial hearing and at trial that the gun found in the cabin was his. The trial court noted in its order that Blagg had made the statement in response to a question concerning his client's standing to challenge the search. The court found that the statement was made as a strategic decision that the statement was necessary to establish standing to challenge the search. We need not determine, however, whether Blagg's performance was deficient when he made the statement because it is clear that Magness failed to demonstrate prejudice from Blagg's statement.

Magness is incorrect in his assertion that the State had a burden to demonstrate that he was not entitled to relief. As noted above, it is the petitioner who must show both deficient performance by counsel and prejudice in order to warrant relief on a claim of ineffective assistance. Unless a petitioner under Rule 37 makes both required showings under the Strickland analysis, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883. There is therefore no reason for a court deciding an ineffective-assistance claim to address both components of the inquiry if the petitioner fails to make a sufficient showing on one. Id.

Here, Magness did not carry his burden to demonstrate facts in support of his claim that he was prejudiced by counsel making the statement. He offered no alternative argument that counsel should have presented in order to have established standing to challenge the search, or to have changed the outcome of the pretrial hearing. In the petition, he appears to contend that the remark was at odds with his position at trial that he had no knowledge of the gun. However, Blagg's concession on that issue, if it were one, was not mentioned to the jury, there was no reference to it at trial, and the jury was instructed to determine the facts based on the evidence at trial. So, Magness failed to establish any basis for the remark having an impact on the jury's decision.

Magness alleges that trial counsel, Mel Jackson, was ineffective for filing a motion that was “stolen” from appellant, for leaving a hearing and causing appellant to have to represent himself, for moving to withdraw in front of the jury, for causing appellant to object to evidence and to file a pro se notice of appeal, and for committing suicide.⁴ We agree with the trial court's conclusion in its order denying relief that Magness did not plead facts that were supported by the record for these claims. We further agree with the trial court's conclusions that Magness did not demonstrate prejudice from the claims, did not satisfy the Strickland standard, and failed to identify specific acts or omissions of trial counsel, which, when viewed from counsel's perspective at the time of the trial, were not the result of reasonable professional judgment.

Magness contended that Jackson was ineffective because a motion that Jackson filed to dismiss without prejudice was “stolen” from appellant. The motion at issue asserted the same claims that Magness had stated in a pro se motion to dismiss without prejudice filed a few days before counsel's motion. As the trial court's order indicates, the two pleadings were argued and considered together during a pretrial hearing. Magness did not, either in the petition or in the hearings, meet his burden to demonstrate that this action by counsel could not have been the result of reasonable professional judgment.

As the trial court noted in its order, the record does not support Magness's claim that Jackson left a hearing...