Miller v. State Of Ark.

• Citation: 2011 Ark. 114
• Decision Date: 17 March 2011
• Docket Number: No. CR 08-1357,CR 08-1357
• Parties: RANDY MILLER Appellant v. STATE OF ARKANSAS Appellee
• Court: Supreme Court of Arkansas

2011 Ark. 114

RANDY MILLER Appellant v. STATE OF ARKANSAS Appellee

No. CR 08-1357

SUPREME COURT OF ARKANSAS

Opinion Delivered March 17, 2011

APPEAL FROM UNION COUNTY CIRCUIT COURT, CR 2005-56, HON. CAROL ANTHONY, JUDGE

AFFIRMED.

PER CURIAM

Appellant was convicted by a jury of two counts of delivery of cocaine, for which he was sentenced to eighty years' incarceration in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed, holding that claims regarding the sufficiency of the evidence were not preserved for appellate review because trial counsel had failed to renew his motion for directed verdict at the close of all of the evidence. Miller v. State, CACR 06-888 (Ark. Ct. App. May 9, 2007) (unpublished). Appellant subsequently filed a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010). The trial court held a hearing on appellant's petition pursuant to Arkansas Rule of Criminal Procedure 37.3(c), following which the court entered an order denying relief.

Now before us is appellant's appeal from the trial court's denial of postconviction relief. On appeal, appellant asserts the same two claims that he raised in his original Rule 37.1 petition to the trial court—that his due process rights were violated because he was entitled to an appeal "on the merits," which he did not receive due to trial counsel's errors, and that trial counsel wasineffective for failing to preserve the issue of sufficiency of the evidence. We find no error, and we affirm.

This court does not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous. Ewells v. State, 2010 Ark. 407 (per curiam) (citing Jamett v. State, 2010 Ark. 28, ___S.W.3d___(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. Watkins v. State, 2010 Ark. 156 (per curiam); Polivka v. State, 2010 Ark. 152, ___S.W.3d ___.

In an appeal from a trial court's denial of postconviction relief on a claim of ineffective assistance of counsel, the sole question presented is whether, based on the 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. Ewells, 2010 Ark. 407, at 2. Under the Strickland test, a claimant must first demonstrate that counsel's performance fell below an objective standard of reasonableness. Smith v. State, 2010 Ark. 137, at 2, ___S.W.3d___, ___. Secondly, under Strickland, the claimant must demonstrate that counsel's deficient performance prejudiced his defense to such an extent that the petitioner was deprived of a fair trial. McCraney v. State, 2010 Ark. 96, ___S.W.3d____(per curiam). Such a showing requires that the petitioner demonstrate a reasonable probability that the fact-finder's decision would have been differentabsent counsel's errors. Ewells, 2010 Ark. 407, at 3. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.Id.

Appellant's arguments are essentially two sides of the same coin. His first claim is that his due process rights were violated because he was entitled to an appeal "on the merits," which he did not receive due to trial counsel's failure to preserve the issue of "sufficiency of the evidence." His second argument is that trial counsel was ineffective for failing to preserve the same issue, and appellant points to his inability to receive an appeal "on the merits" as proof of prejudice. Neither argument is persuasive.

With respect to appellant's due process claim, we have consistently held that such claims are not cognizable in a Rule 37.1 petition. See, e.g., Wallace v. State, 2010 Ark. 485 (per curiam); Mills v. State, 2010 Ark. 390 (per curiam); Bell v. State, 2010 Ark. 65, ____ S.W.3d___(per curiam). Moreover, we note that Arkansas Rule of Criminal Procedure 33.1(c) states that the "failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required... will constitute a waiver of any question pertaining to the sufficiency of the evidence." Application of the rules of criminal procedure to appellant's case can hardly be construed as depriving him of his due process rights. Thus, we cannot say that the trial court was clearly erroneous in denying relief on this point.

Regarding appellant's second point on appeal, he argues that the trial court incorrectly denied relief based on ineffective assistance of counsel. At trial, counsel made a proper motion for directed verdict at the close of the state's case but failed to properly renew that motion atthe close of all evidence. In such situations, when dealing with a postconviction motion based on ineffective assistance of counsel, we have previously explained that the question for the trial court is whether anything occurred between when the first motion was denied and the conclusion of all evidence that would have caused the court to grant the motion had it been properly renewed. See Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). Once the trial court determines that no such event occurred, and thus no prejudice resulted from the failure to renew the motion, an appeal of that decision requires this court to review whether the evidence was sufficient for presentation to the jury. See id.

The trial court found that, even if trial counsel had preserved the issue, "the evidence of [appellant's] guilt was overwhelming." In support of this finding, the trial court pointed to the testimony of an informant regarding the drug transactions, the testimony of a narcotics officer who listened to the audio transmissions during the...