Moss v. State, 2010 Ark. 284 (Ark. 6/3/2010)

• Decision Date: 03 June 2010
• Docket Number: CR 82-160.
• Parties: John Thomas MOSS, Petitioner, v. STATE of Arkansas, Respondent.
• Court: Arkansas Supreme Court

Page 1

2010 Ark. 284

John Thomas MOSS, Petitioner, v. STATE of Arkansas, Respondent.

CR 82-160.

Supreme Court of Arkansas.

Opinion Delivered June 3, 2010.

Pro Se Petition for Leave to Proceed Under Arkansas Rule of Criminal Procedure 37.1 [Circuit Court of Sharp County, CR 81-30]

Petition Denied.

PER CURIAM.

In 1982, a jury found petitioner John Thomas Moss guilty of capital felony murder and sentenced him to life imprisonment. This court affirmed that judgment. Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983). Petitioner now brings the instant petition seeking leave, as required by Arkansas Rule of Criminal Procedure 37.2 (1984), to proceed under Arkansas Rule of Criminal Procedure 37.1.¹

The applicable version of Rule 37.2 provides that, when the judgment was appealed to this court as it was here, postconviction relief under the rule is only available if a petitioner seeks permission in this court to proceed within three years of the date of commitment, "unless the ground for relief would render the judgment of conviction absolutely void." Ark R. Crim. P. 37.2. An allegation on which a judgment can be voided must present a question of such a fundamental and basic nature that the judgment is a complete nullity, such as a conviction obtained in a court without jurisdiction to try the accused or a judgment obtained in violation of double jeopardy principles. Hunes v. State, 2010 Ark. 70 (per curiam) (citing Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985)). Even questions of a constitutional dimension are not preserved beyond the direct appeal or available for collateral attack unless the issue renders the judgment void. Id. (citing Taylor v. State, 297 Ark. 627, 764 S.W.2d 447 (1989) (per curiam)).

Petitioner raises three bases for postconviction relief in his petition. He first asserts ineffective assistance of counsel for a number of alleged mistakes by trial counsel. He next contends that he was denied due process of law on two bases, as follows: that the trial court failed to properly instruct the jury as to his sentencing; that there was prosecutorial misconduct in that the prosecutor alluded to evidence that petitioner asserts was not admissible, and the trial court failed to grant a mistrial on that basis. Finally, he alleges that he was denied the assistance of an expert for purposes of determining his mental status at the time of the charged offenses. We hold that none of these bases provide grounds for relief so fundamental that the judgment would be rendered void.

In his first ground for relief, petitioner asserts ineffective assistance of counsel for failure to investigate, for inadequate experience in capital cases, for failure to present adequate materials concerning petitioner's mental health, and for failure to challenge the sentencing form or move to have the verdict set aside for sentencing error. With exception of the last claim, these allegations do not raise the type of error sufficient to void the judgment.

In order to prevail on any claim of ineffective assistance, a petitioner is required to demonstrate prejudice in that the alleged error would have impacted the outcome of the trial. See Watkins v. State, 2010 Ark. 156, ___ S.W.3d ___ (per curiam) (actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice). Here, petitioner must make a more specific demonstration of a type of prejudice so fundamental that it voids the judgment. If it is still possible that there was a reliable finding of guilt, even if petitioner were to make some showing of prejudice, then petitioner has not demonstrated a fundamental error; under those circumstances, reversal for a new trial is the appropriate remedy, not a holding that the judgment is void. See Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999) (per curiam) (discussing "structural" error and the preclusion of a harmless-error analysis for fundamental error). Other than the claim of sentencing error, petitioner's claims of ineffective assistance fail to raise this type of error.

Portions of two of petitioner's claims, the allegation that counsel was ineffective as a result of failure to challenge the sentencing procedure and the allegation alleging a violation of due process by virtue of trial error in the sentencing procedure, assert the type of fundamental error that may potentially void a judgment. Both claims pertain to issues involving the sentencing forms presented to the jury and the fact that the judgment only recited a single sentence for convictions on two charges, capital felony murder and attempted capital felony murder. If the alleged defect resulted in an illegal sentence, then the conviction would be voided.

In this case, the jury effectively returned no sentence on the charge of attempted capital murder; the only sentence returned was the sentence for the charge of capital murder. The alleged errors in this case would not void the judgment for the conviction on the capital murder charge. The verdict form provided to the jury following petitioner's conviction on the two charges provided only two alternatives for sentencing, life without parole or death. The jury was not provided with a sentencing form for the attempted murder charge. If the judgment were to be construed to reflect two verdicts, then a verdict on the charge of attempted capital murder would be void. As we did in our opinion on direct appeal, we treat the judgment here as effective only as to the single conviction for capital felony murder.² Petitioner does not assert...