Pigg v. State

• Decision Date: 10 March 2016
• Docket Number: No. CR–15–519,CR–15–519
• Citation: 2016 Ark. 108,486 S.W.3d 751
• Parties: Earl Delmar Pigg, Appellant, v. State of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2016 Ark. 108

486 S.W.3d 751

Earl Delmar Pigg, Appellant,

v.State of Arkansas, Appellee.

No. CR–15–519

Supreme Court of Arkansas.

Opinion Delivered March 10, 2016

Rehearing Denied April 14, 2016

Earl Delmar Pigg, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellee.

PER CURIAM

In 2013, appellant Earl Delmar Pigg was found guilty of eleven counts of rape of a victim who was less than fourteen years of age and one count of interference with custody. Pigg received consecutive life sentences for all eleven counts of rape and an additional term of 120 months' imprisonment, also to be served consecutively to the life sentences, for the interference charge. This court affirmed the judgment. Pigg v. State, 2014 Ark. 433, 444 S.W.3d 863

. Pigg filed in the trial court a petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1

(2015). Following an evidentiary hearing, the court denied relief, considering both the original petition and a supplemental petition, and Pigg brings this appeal. We affirm the order denying postconviction relief.

This court will not reverse a trial court's decision granting or denying postconviction relief unless it is clearly erroneous. Houghton v. State, 2015 Ark. 252, 464 S.W.3d 922

. 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. Pigg alleges seven points for reversal.¹

In his first point on appeal, Pigg contends that the trial court failed to provide the findings of fact and conclusions of law required under Arkansas Rule of Criminal Procedure 37.3

. When the trial court does not summarily deny relief on a Rule 37.1 petition without a hearing under Rule 37.3(a), the court must determine the issues and make written findings of fact and conclusions of law with respect to those issues. Ark. R.Crim. P. 37.3(c). This court has consistently remanded when the trial court failed to enter any written findings following a hearing, and we remand when the findings provided are not adequate for our review. Magness v. State, 2015 Ark. 185, 461 S.W.3d 337 (per curiam).

When the trial court provides written findings on at least one, but less than all of the claims in the petition, however, the appellant has an obligation to obtain a ruling on any omitted issues to be considered on appeal. Id.

Any claim on which the appellant failed to obtain a ruling is procedurally barred from our review. Fisher v. State, 364 Ark. 216, 217 S.W.3d 117 (2005). The trial court provided written findings. Although Pigg contends that the trial court's findings on the issues were conclusory, as we discuss in turn below, the court's findings are adequate for our review of those remaining issues that were addressed by the trial court and raised on appeal.

The other points raised in Pigg's brief-in-chief address his claims of ineffective assistance of counsel. Our standard for ineffective-assistance-of-counsel claims is the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

. Rasul v. State, 2015 Ark. 118, 458 S.W.3d 722. 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. Mister v. State, 2014 Ark. 446, 2014 WL 5494016. Unless a petitioner makes both showings, the allegations do not meet the benchmark for assessing a claim of ineffective assistance. Houghton, 2015 Ark. 252, 464 S.W.3d 922.

Counsel is presumed effective, and allegations without factual substantiation are insufficient to overcome that presumption. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55

. A petitioner, in claiming deficiency, must show that counsel's representation fell below an objective standard of reasonableness, and this court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. A petitioner has the burden of overcoming the presumption that counsel is effective by identifying specific acts and omissions that, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.

A claimant must show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's alleged errors in order to meet the second prong of the test. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883

. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. In assessing prejudice, courts “must consider the totality of the evidence before the judge or jury.” Rasul, 2015 Ark. 118, at 7, 458 S.W.3d at 727 (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052 ).

In his first claim of ineffective assistance, Pigg appears to concede that the trial court correctly determined counsel was not ineffective for failing to request a hearing for admission of evidence under the rape-shield statute. In its order denying relief, the trial court found that counsel had sought such a hearing, and, albeit unsuccessfully, sought to have the evidence admitted. The record supports that conclusion.

Pigg consolidates his arguments for his next two points on appeal. Both concern Pigg's allegations that trial counsel failed to perform an adequate investigation into potential witness testimony or defenses. The trial court found that the witnesses that Pigg contended counsel should have investigated and called were identified to counsel only after trial had begun and that the witnesses' testimony would have been inadmissible hearsay. The trial court further found that Pigg never identified another defense that counsel might have pursued. On appeal, Pigg contends that, contrary to the trial court's findings, he demonstrated that counsel could have used these witnesses in support of a defense theory positing that the victim had concocted the accusations against Pigg in retaliation for Pigg's having caused charges to be brought against a youth minister who was convicted of a sex offense involving the victim. Although Pigg contends the trial court erred in failing to find counsel's actions were not ineffective, we conclude that the trial court correctly found that Pigg did not demonstrate prejudice.

In reviewing an assertion of ineffective assistance of counsel based on failure to investigate, a petitioner must describe how a more searching pretrial investigation would have changed the results of his trial. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895

. The burden is entirely on the claimant to provide facts that affirmatively support his claims of prejudice. Id. Under the circumstances of this case, Pigg failed to meet this burden. He did not demonstrate that presenting the defense that he contends counsel should have investigated and presented would have changed the outcome of the trial.

The evidence at Pigg's trial included testimony from A.S. and her younger sister, W.S., who were friends with Pigg's daughter. A.S. testified that she had an ongoing sexual relationship with Pigg that began when she was eleven or twelve. A.S. testified that Pigg proposed marriage and gave her a ring on a trip to Fayetteville that she took with Pigg, Pigg's daughter, and W.S. W.S. and Pigg's daughter both testified to having witnessed the marriage proposal and to having previously witnessed oral sex between Pigg and A.S. W.S. testified that she had been digitally penetrated by Pigg. Pigg's daughter's mother also described the relationship between Pigg and A.S., and, consistently with the girls' testimony, she stated that she had noticed inappropriate behavior between the two that was indicative of a sexual relationship. She testified that Pigg had demanded that she begin sleeping in a guest room so that A.S. could sleep with Pigg.

An investigating detective, Jonathan Wear, testified that A.S. was wearing a ring that she said Pigg had given her, and the ring was introduced into evidence. Wear also testified that Pigg had fled on his motorcycle when Wear and another officer tried to arrest him, that Pigg crashed the motorcycle, and that a phone was confiscated at the crash scene. The phone had numerous pictures of A.S., texts with A.S., and a video of A.S. dancing that were all introduced into evidence.

One of the girls' friends testified that she had accompanied Pigg and A.S. on a trip to Branson, Missouri, where she observed A.S. holding hands with Pigg and A.S. dancing in the video. The friend testified that they had told A.S.'s grandmother, who was A.S.'s guardian, that they were going to visit an aunt of the friend because A.S. was not supposed to be with Pigg. They had taken...