Ross v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: ROBERT J. GLADWIN, Judge
• Citation: Ross v. State, 518 S.W.3d 758 (Ark. App. 2017)
• Decision Date: 19 April 2017
• Docket Number: No. CR–16–713,CR–16–713
• Parties: John David ROSS, Appellant v. STATE of Arkansas, Appellee

518 S.W.3d 758

John David ROSS, Appellant

v.STATE of Arkansas, Appellee

No. CR–16–713

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered: April 19, 2017

James Law Firm, Little Rock, by: Bobby R. Digby II, for appellant.

Leslie Rutledge, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.

ROBERT J. GLADWIN, Judge

Appellant John David Ross filed a petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2016). The Garland County Circuit Court denied the petition. Ross appeals, arguing that the circuit court erred in denying his amended petition under Arkansas Rule of Criminal Procedure 37 without holding an evidentiary hearing. We assumed this appeal pursuant to Barnes v. State , 2017 Ark. 76 n.1, 511 S.W.3d 845 (per curiam). For the reasons stated below, we affirm the trial court's denial of postconviction relief.

A Garland County jury convicted Ross of sixteen counts of possessing or viewing matter depicting sexually explicit conduct involving a child, one count of permitting abuse of a minor, and one count of bestiality. At the jury's recommendation, the circuit court ordered that Ross's sentences be served consecutively, and he received a cumulative maximum sentence of 180 years in the Arkansas Department of Correction pursuant to a sentencing order filed on October 7, 2014. This court affirmed Ross's convictions in an opinion issued on October 28, 2015. See Ross v. State , 2015 Ark. App. 613, 474 S.W.3d 539. The mandate from that appeal was filed on November 19, 2015.

With the assistance of counsel Ross filed a timely petition for relief under Rule 37 on January 15, 2016, with the Garland County Circuit Court, which alleged numerous errors by trial counsel and contained a proper verification. He also filed a motion for leave to file an amended and enlarged Rule 37 petition on the same date, and that motion was granted by an order filed by the circuit court on January 19, 2016. Ross filed an amended petition on February 25, 2016, and the State filed a response on March 24, 2016. The circuit court did not hold a hearing on the matter, but instead, following the parties' submissions, entered a ten-page written order that denied relief on May 10, 2016. The trial court relied on the parties' pleadings, as well as an extensive review of the trial record, and concluded that the mistakes Ross alleged trial counsel had made would have been meritless and otherwise would not have changed the outcome of his trial. On appeal, Ross repeats some, but not all, of the claims raised below and argues that the trial court erred by denying these claims for relief. The arguments that were made below but not raised on appeal are considered abandoned. State v. Grisby , 370 Ark. 66, 69, 257 S.W.3d 104, 107 (2007).

This court will not reverse the trial court's decision granting or denying postconviction relief unless it is clearly erroneous. Walden v. State , 2016 Ark. 306, at 2–3, 498 S.W.3d 725, 728–29 (per curiam); Kemp v. State , 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). 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. Walden , 2016 Ark. 306 at 2–3, 498 S.W.3d at 728–29. When considering an appeal from a trial court's denial of a Rule 37.1 petition based on 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel's performance was not ineffective. ld. Under the two-prong standard outlined in Strickland , 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. Id. The reviewing court must indulge in a strong presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance. Id. The petitioner claiming ineffective assistance of counsel 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. The second prong requires a petitioner to show that counsel's deficient performance so prejudiced his defense that he was deprived of a fair trial. Id. Consequently, the petitioner must show there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id.

A person seeking postconviction relief on a claim of ineffective assistance that is based on the failure of counsel to make a motion or objection must show that counsel could have made a successful argument in order to demonstrate the prejudice required under the Strickland test. Breeden v. State , 2014 Ark. 159, at 6–7, 432 S.W.3d 618, 624 (per curiam). Failure to make a meritless objection or motion does not constitute ineffective assistance of counsel. Id. ; Greene v. State , 356 Ark. 59, 70, 146 S.W.3d 871, 880 (2004).

Rule 37.3(c) provides that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief. See Wooten v. State , 338 Ark. 691, 1 S.W.3d 8 (1999). The circuit court, in its discretion, can deny postconviction relief without a hearing if it concludes that the petitioner is entitled to no relief. Mancia v. State , 2015 Ark. 115, 459 S.W.3d 259. Rule 37.3(a) states that

[i]f the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court's findings.

Without the specific findings, there can be no meaningful review in this court, because this court determines whether the findings are supported by a preponderance of the evidence. Rackley v. State , 2010 Ark. 469, 2010 WL 4922390 (per curiam). We are not required to scour the record in a Rule 37.1 appeal to determine if the petition is wholly without merit when there are no written findings. Id. When a hearing is not held, it is the function of the circuit court to make written findings. Id.

Before addressing Ross's arguments on appeal, it is necessary to review the evidence adduced at his trial. The trial record demonstrates that at trial, the State presented evidence from Agent Chris Cone of the Attorney General's Cyber Crimes Unit that Ross confessed to viewing child pornography and that he knew that his codefendant, Amanda Hartle, had sexual relations with Ross's minor son. The State also presented evidence from Agent Jeff Shackleford, a forensic analyst in the Cyber Crimes Unit, about the contents of a computer and phone found at Ross's residence. Ross's minor son, M.S., also testified about having oral sex with Hartle. The evidence included pornographic images of children contained on Ross's laptop computer and cell phone; Ross's allowing his girlfriend to sexually abuse his fourteen-year-old son; and Ross's participating with his girlfriend in her acts of bestiality with his son's dog.

I. Was a Hearing Required on Counsel's Failure to Subpoena Hartle at Trial?

Ross initially notes that his trial counsel erroneously failed to subpoena Hartle to testify at trial. His Rule 37 petition alleged that Hartle would testify at the Rule 37 hearing that she had written a letter accepting responsibility for at least some of the child pornography Ross was convicted of possessing or viewing and would have so testified at his trial if trial counsel had subpoenaed her. Hartle allegedly also would have testified that Ross told her not to download illegal pictures on his computer.

The circuit court found that trial counsel was not ineffective because Hartle had previously indicated her desire to invoke her Fifth Amendment privilege, and the issue had been decided on direct appeal.¹

Ross argues that the circuit court was wrong on both accounts.

Ross's claim for counsel's failure to subpoena Hartle is conclusory and insufficient for Rule 37 relief. See Jones v. State , 2009 Ark. 308, 2009 WL 1423912 (per curiam). Ross claims that "a witness's desire to invoke her Fifth Amendment privilege in advance of trial does not demonstrate conclusively that she would have done so at trial," but he fails to support this claim with any logical argument or citation to authority. Ortega v. State , 2016 Ark. 372, at 6, 501 S.W.3d 824, 828. Conclusory statements, without more, cannot form the basis for postconviction relief. Hooks v. State , 2015 Ark. 258, at 7, 465 S.W.3d 416, 421 (per curiam).

Alternatively, the circuit court did not err in denying relief based on Hartle indicating at a pretrial hearing that, on the advice of counsel, she would invoke her Fifth Amendment privilege against self-incrimination and refuse to testify. Hartle had expressed her intention in separate proceedings before the circuit court to invoke her Fifth Amendment privilege against self-incrimination and not testify in Ross's trial. The circuit court's written findings were sufficient to satisfy the requirements of Rule 37.3(c) and Mancia , supra.

II. Was a Hearing Required Regarding Counsel's Failure to File Meritorious Pretrial...