Robinson v. State, CR
| Citation | 751 S.W.2d 335,295 Ark. 693 |
| Decision Date | 06 June 1988 |
| Docket Number | No. CR,CR |
| Parties | William ROBINSON, Jr., Petitioner, v. STATE of Arkansas, Respondent. 86-108. |
| Court | Arkansas Supreme Court |
Mark D. Drake, McGehee, for petitioner.
Steve Clark, Atty. Gen., Little Rock, for respondent.
The petitioner, William Robinson, Jr., was convicted of two counts of aggravated robbery and sentenced to two concurrent terms of forty years. We affirmed. Robinson v. State, 291 Ark. 212, 723 S.W.2d 818 (1987). The petitioner has filed a petition and a motion to amend the petition, seeking permission to proceed in circuit court for postconviction relief.
The petitioner has alleged fifteen grounds for postconviction relief. In a thirty-nine page petition, the following grounds could have been raised in trial or on appeal but were not: Points one, two and three, which allege that the petitioner was illegally arrested and denied counsel at a critical stage of the proceeding; point eight, which alleges that it is unconstitutional to force him to choose between his right to testify and the state's burden to prove the existence of his prior convictions beyond a reasonable doubt; points nine and ten, which allege the unconstitutionality of the trial court's determining the number of prior convictions for sentence enhancement purposes; and point thirteen, which alleges that three of the four convictions used to enhance his sentence were invalid. Rule 37 does not provide a remedy when an issue could have been raised in the trial court or on appeal, unless the issue presents a question so fundamental that the judgment of conviction is rendered absolutely void. White v. State, 290 Ark. 77, 716 S.W.2d 203 (1986); Collins v. State, 271 Ark. 825, 611 S.W.2d 182, cert. denied, 452 U.S. 973, 101 S.Ct. 3127, 69 L.Ed.2d 984 (1981).
Points four, five, and six all allege that the state presented insufficient evidence to prove the crimes charged. The petitioner also claims his attorney was ineffective in not challenging the insufficiency of the evidence. Challenges to the weight and sufficiency of the evidence are direct attacks on the conviction and, consequently, may not be raised in Rule 37 petitions. McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983). Nor can the argument be raised by way of an allegation of ineffective assistance of counsel. Guy v. State, 282 Ark. 424, 668 S.W.2d 952 (1984).
In point eleven the petitioner alleges that after the trial he learned from a juror that during the deliberations the jury speculated as to why the petitioner did not testify. Without discussing the impropriety of attempting to go behind the jury's verdict, we note that the petitioner has not demonstrated that the jury considered any extraneous prejudicial evidence.
In point twelve, the petitioner challenges our standard of review on appeal with respect to several points including circumstantial evidence and the credibility of witnesses. Rule 37 is not the equivalent of either a second appeal or a petition for rehearing.
In point seven, the petitioner claims that his attorney was ineffective in advising him not to testify. He states that his attorney told him that if he testified that he would be corss-examined as to his prior felony convictions. He claims that he would have testified except for this advice, and that if the state was allowed to impeach him with prior felonies, that would be unconstitutionally relieving the state of its burden of proving the existence of prior felonies beyond a reasonable doubt for purposes of sentence enhancement.
To prove ineffective assistance of counsel, the petitioner must show that counsel's performance was deficient in that counsel made an error so serious that he was not functioning as the "counsel" guaranteed by the sixth amendment. Second, the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose outcome cannot be relied on as just. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The state has the right to impeach a witness's credibility with prior convictions. A.R.E. Rule 609. Such questions would not shift the burden of proof. The questions are used to impeach credibility not to prove the existence of prior convictions. For purposes of sentence enhancement, prior convictions are proven by judgments during the punishment phase of the trial. Ark.Code Ann. § 5-4-502 (1987) [Ark.Stat.Ann. § 41-1005 (Repl.1977) ]. The accused has the right to choose whether to testify in his own behalf. Moore v. State, 244 Ark. 1197, 429 S.W.2d 122 (1968). Counsel may only advise the accused in making the decision. Watson v. State, 282 Ark. 246, 667 S.W.2d 953 (1984). The decision to testify is purely one of strategy and therefore, not reviewable under Rule 37. Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985).
The petitioner also faults his attorney for not objecting to the circumstances of his arrest. He states that his arrest warrant was not issued by a magistrate, that he was denied an attorney at the probable cause hearing, and that a statement he gave was the product of the illegal arrest. The arrest warrant is not in the record nor were any facts testified to with regard to the arrest or the probable cause hearing. However, the only fruits of the arrest were the petitioner's two statements and both of those were exculpatory. Therefore, even if the petitioner's allegations are true he has shown no prejudice.
The petitioner claims that his attorney should have objected to the following jury instruction:
[The petitioner] is charged with two counts of the offense of aggravated robbery. To sustain these charges the state must prove the following things beyond a reasonable doubt as to each count:
First: That, with the purpose of committing a theft, [the petitioner] employed or threatened to immediately employ physical force upon another; and
Second: That [the petitioner] was armed with a deadly weapon or represented by words or...
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Price v. State
...has the right to choose whether to testify in his own behalf. Dansby v. State, 347 Ark. 674, 66 S.W.3d 585 (2002); Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988). Counsel may only advise the defendant in making the decision. Watson v. State, 282 Ark. 246, 667 S.W.2d 953 (1984). Henc......
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Engram v. State
...that the proceeding be fundamentally fair. See Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997) (quoting Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988)). Here, the question becomes whether it is "fundamentally fair" to require an inmate on death row to abide by the stringent f......
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Watkins v. State
...requirements or other limitations on postconviction relief did not fail to provide due process. See, e.g., Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988) (per curiam) (holding that requiring a petition for postconviction relief to meet certain threshold requirements is fundamentally......
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Larimore v. State
...court. Hamilton v. State, 323 Ark. 614, 615, 918 S.W.2d 113, 113 (1996) (examining Ark. R.Crim. P. 37.2(c)). In Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988), this court There is no constitutional right to a postconviction proceeding; but when a state undertakes to provide collater......