Shadwick v. State

• Decision Date: 19 April 2017
• Docket Number: No. CR–16–837,CR–16–837
• Citation: 519 S.W.3d 722
• Parties: Zackery Warren SHADWICK, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Court of Appeals

519 S.W.3d 722

Zackery Warren SHADWICK, Appellant

v.STATE of Arkansas, Appellee

No. CR–16–837

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered April 19, 2017

Zackery W. Shadwick, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.

WAYMOND M. BROWN, Judge

Appellant Zackery Warren Shadwick was convicted of possessing or viewing matter depicting sexually explicit conduct involving a child, failing to register as a sex offender, and entering a school campus as a registered sex offender. He was sentenced to an aggregate sentence of 312 months' imprisonment. Pursuant to Arkansas Supreme Court Rule 4–3(k) and Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Shadwick's counsel filed a motion to withdraw, stating there was no merit to an appeal. Shadwick's convictions and sentences were affirmed by the Arkansas Court of Appeals. Shadwick v. State , 2016 Ark. App. 13, 2016 WL 157807. The mandate issued on February 2, 2016. On March 18, 2016, Shadwick timely filed a verified pro se petition under Arkansas Rule of Criminal Procedure 37.1 (2016). On June 29, 2016, the trial court denied the petition for postconviction relief, and Shadwick lodged an appeal from the denial.¹

On appeal, Shadwick contends that trial counsel was ineffective for the following reasons: failing to change the venue; failing to object to the State's use of his past criminal history during the guilt and innocence phase of trial which prejudiced him; not objecting to faulty jury instructions and failing to offer instructions to the jury regarding the evidence of other crimes; failing to investigate and present evidence to prove his innocence; and failing to challenge the trial court's jurisdiction because he was in Montana at the time of the offenses.

When considering an appeal from a trial court's denial of a Rule 37.1 petition, the sole question presented is whether, 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. Anderson v. State , 2011 Ark. 488, 385 S.W.3d 783 ; Sparkman v. State , 373 Ark. 45, 281 S.W.3d 277 (2008). In making a determination of ineffective assistance of counsel, the totality of the evidence must be considered. Henington v. State , 2012 Ark. 181, 403 S.W.3d 55.

The benchmark for judging a claim of ineffective assistance of counsel is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland , 466 U.S. at 686, 104 S.Ct. 2052. Pursuant to Strickland , the appellate court assesses the effectiveness of counsel under a two- prong analysis. First, a petitioner must show that counsel's performance was deficient. Britt v. State , 2009 Ark. 569, 349 S.W.3d 290 (per curiam). Counsel is presumed effective, and allegations without factual substantiation are insufficient to overcome that presumption. Henington , 2012 Ark. 181, 403 S.W.3d 55. The petitioner has the burden of overcoming the presumption 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. Wainwright v. State , 307 Ark. 569, 823 S.W.2d 449 (1992) (per curiam). A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Henington , 2012 Ark. 181, 403 S.W.3d 55.

Second, a petitioner must also show that this deficient performance prejudiced his defense so as to deprive him of a fair trial. Id. The petitioner must show that, even if counsel's conduct is shown to be professionally unreasonable, the judgment will stand unless the petitioner can demonstrate that counsel's error had an actual prejudicial effect on the outcome of the proceeding. Strickland , 466 U.S. at 691, 104 S.Ct. 2052. A petitioner, in claiming deficiency, must show that "counsel's representation fell below an objective standard of reasonableness." Id. A petitioner must also demonstrate that there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, or in other words, that the decision reached would have been different absent the errors. Henington , 2012 Ark. 181, 403 S.W.3d 55. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, "the outcome of the trial," refers not only to the finding of guilt or innocence, but also to possible prejudice in sentencing. Howard v. State , 367 Ark. 18, 238 S.W.3d 24 (2006). 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. "[T]here is no reason for a court deciding an ineffective assistance of counsel claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland , 466 U.S. at 697, 104 S.Ct. 2052.

The standard of review in Rule 37.1 proceedings is that, on appeal from a trial court's ruling on a petitioner's request for Rule 37.1 relief, the appellate court will not reverse the trial court's decision granting or denying postconviction relief unless it is clearly erroneous. Beavers v. State , 2016 Ark. 277, 495 S.W.3d 76. 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.

Shadwick contends that his trial counsel was ineffective for failing to seek a change in venue. Specifically, he argues that counsel did not ask the potential jurors, "Have you seen or read a public notification of the local sex offenders[,]" or "Have you ever seen Defendant's picture before?" Shadwick contends that counsel's failure to ask these questions caused him prejudice. The trial court determined that Shadwick's allegations were conclusory.

The decision of whether to seek a change of venue is largely a matter of trial strategy and is therefore not an issue to be debated under Rule 37. Van Winkle v. State , 2016 Ark. 98, at 13, 486 S.W.3d 778, 787. As the trial court was finding the jury panel qualified, it read the criminal information which included count two—sex offender failing to register— and the jury was made aware of the nature of the offenses for which Shadwick was being tried. Shadwick failed to argue the nature of any impact regarding whether the jurors had seen his image on any notifications prior to trial on the outcome of his trial. Trial counsel is not ineffective for failure to make a motion or argument when petitioner failed to show that the motion or argument would have been meritorious. Rea v. State , 2016 Ark. 368, at 9, 501 S.W.3d 357, 364 (per curiam). By merely making a conclusory claim that had counsel asked some specific questions about recognizing Shadwick from public postings or notifications, Shadwick fails to make a convincing claim that he is entitled to postconviction relief. See Jones v. State , 2014 Ark. 448, at 6–7, 486 S.W.3d 743, 748 (per curiam) ("The burden is entirely on the claimant to provide facts that affirmatively support his or her claims of prejudice; neither conclusory statements nor allegations without factual substantiation are sufficient to overcome the presumption that counsel was effective."); see also Detherow v. State , 2015 Ark. 447, at 5, 476 S.W.3d 155, 159 (per curiam).

Shadwick next claims counsel was ineffective for failing to object to the State's introduction of his past criminal history during the guilt phase of the trial pursuant to Rule 609 of the Arkansas Rules of Evidence. Specifically, he contends that he would have received an impartial judgment and would not have been found guilty had evidence of his past criminal history not been admitted, and as a result, he was prejudiced. Below, the trial court found that Shadwick failed to identify what, if any, criminal convictions were offered into evidence against him, and that, if he was referring to the criminal convictions offered against him during the sentencing phase of his trial, he failed to demonstrate any prejudice.

A petitioner under Rule 37.1 has the burden of pleading facts to support his claims, and conclusory allegations that are unsupported by facts do not provide a basis for postconviction relief. Henington , 2012 Ark. 181, 403 S.W.3d 55. Shadwick fails to identify the specific testimony elicited that required an objection from his trial counsel or that would have resulted in prejudice.² The appellate court does not research or develop arguments for appellants. Sims v. State , 2015 Ark. 363, at 11, 472 S.W.3d 107, 116. Arkansas Rule of Evidence 609 states that for "the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted" but only if the crime is punishable by imprisonment in excess of one year, and the "court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness[.]" Shadwick's Rule 609 claim fails to establish that trial counsel was ineffective because Shadwick did not testify, meaning trial counsel had no basis to make an objection to Shadwick's claims regarding his proclaimed violations of Rule 609. See Montgomery v. State , 2011 Ark. 462, at 15–16, 385 S.W.3d 189, 201 ("Appellant's counsel could not have been ineffective in failing to make a meritless objection, and this assertion of error presents no basis for postconviction relief.").

In the same vein as his prior argument, Shadwick argues that trial counsel was ineffective for not objecting to the trial court's error in allowing "fa...