Taylor v. State

• Decision Date: 01 October 2015
• Docket Number: No. CR–15–22,CR–15–22
• Citation: 470 S.W.3d 271,2015 Ark. 339
• Parties: Wayne Ladell Taylor, Jr., Appellant v. State of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2015 Ark. 339

470 S.W.3d 271

Wayne Ladell Taylor, Jr., Appellant

v.State of Arkansas, Appellee.

No. CR–15–22

Supreme Court of Arkansas.

Opinion Delivered October 1, 2015

John Wesley Hall and Sarah M. Pourhosseini, Little Rock, for appellant.

Leslie Rutledge, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., for appellee.

Opinion

PAUL E. DANIELSON, Associate Justice

Appellant Wayne Ladell Taylor, Jr., appeals an order of the Pulaski County Circuit Court denying his petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1 (2015). On appeal, he argues that the circuit court erred in denying his Rule 37 petition because appellate counsel's failure to appeal the trial court's ruling that prohibited him from inquiring of the victims about any plea or immunity deal offered by the State constituted ineffective assistance. We affirm.

On October 28, 2011, Taylor was convicted by a Pulaski County Circuit Court jury of aggravated robbery, theft of property, first-degree battery, and committing a terroristic act in connection with a drug buy. The victims, Nathan Holloway and Tommy Pickel, drove from Des Arc to Jacksonville to purchase marijuana and arrangements were made to meet a third person at a local park. While there, Taylor and two other men arrived and robbed Pickel of $650. Gunfire then broke out, and a bullet struck Pickel. Holloway and Pickel were initially hesitant to report the robbery and shooting to police because of their intent to purchase drugs but ultimately did file a police report,¹ and Taylor was charged by felony information, leading to the aforementioned convictions. He was sentenced to a total of eighty-seven years in the Arkansas Department of Correction.

His conviction and sentences were affirmed by the Arkansas Court of Appeals in Taylor v. State, 2013 Ark. App. 146, 2013 WL 765229. Following the court of appeals' affirmance, Taylor filed a Rule 37 petition, asserting two grounds for relief. First, Taylor asserted that he was entitled to question the victims regarding the fact that they were not charged with possession of marijuana, and appellate counsel's waiver of this argument on appeal constituted ineffective assistance of counsel. Second, Taylor argued that he was improperly convicted of both aggravated robbery and first-degree battery in violation of Arkansas Code Annotated section 5–13–201(a)(4) because the first-degree-battery charge is a lesser-included offense of aggravated robbery.

A hearing was held in the circuit court on January 23, 2014, although the record reflects that counsel for Taylor was not present. At that hearing, the State conceded that Taylor was subjected to double jeopardy on the charges of aggravated robbery and first-degree battery and agreed to complete a modified sentencing order reflecting the dismissal of the battery charge and the deletion of the twenty-year sentence imposed for that charge. As to Taylor's other claim, the State argued it was without merit. The court instructed the State to speak with counsel for Taylor and request another hearing if necessary. Thereafter, on September 8, 2014, the circuit court entered an order denying Taylor's claim of ineffective assistance of counsel. The court reasoned that the jury had adequate information about the victims being present in the park to purchase marijuana, thus, Taylor could not show prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because Taylor would not have prevailed on the issue had it been appealed.

That same day an amended sentencing order was filed and a second amended sentencing order was filed on September 11, 2014, both of which reflected the dismissal of the offense of battery in the first degree. This appeal followed.

Taylor's sole point for reversal is that the circuit court erred in denying his Rule 37 petition because his appellate counsel was ineffective in failing to raise an issue on appeal regarding the trial court's order that resulted in Taylor not being able to cross-examine two key witnesses about whether the State had charged either of them with possession of marijuana. Taylor asserts that the right to cross-examine a witness for bias is fundamental and outside the scope of the trial court's discretion. Moreover, Taylor asserts that the right to cross-examine regarding offers of leniency is guaranteed by the Confrontation Clause of the Sixth Amendment.

The State counters that Taylor's argument is without merit because the constitutional issues he now raises were never raised at the trial-court level and, thus, could not have successfully been raised on appeal. Moreover, the State argues that Taylor's argument is without merit because once the trial court allowed Taylor to cross-examine the victims about their presence to purchase marijuana, the court had the discretion as to how far it would allow the cross-examination to go.

This court does not reverse a denial of postconviction relief unless the circuit court's findings are clearly erroneous. Golden v. State, 2013 Ark. 144, 427 S.W.3d 11. 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. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694.

On review of claims of ineffective assistance of counsel, this court follows the standard set forth in Strickland, 466 U.S. 668, 104 S.Ct. 2052. Under that two-prong analysis, 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. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895. The benchmark for judging a claim of ineffective assistance of counsel must be “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.” Sherman v. State, 2014 Ark. 474, at 2, 448 S.W.3d 704, 708 (per curiam) (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 2052 ). In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883.

To satisfy the first prong of the Strickland test, the petitioner must show that counsel's performance was deficient. Decay v. State, 2014 Ark. 387, 441 S.W.3d 899. To meet this requirement, a postconviction petitioner must show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Anderson v. State, 2015 Ark. 18, 454 S.W.3d 212 (per curiam). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and a petitioner has the burden of overcoming this presumption by identifying specific acts or omissions of counsel, which, when viewed from counsel's perspective, could not have been the result of reasonable professional judgment. Stewart v. State, 2014 Ark. 419, 443 S.W.3d 538 (per curiam).

In order to meet the second prong of the test, a claimant must show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Delamar v. State, 2011 Ark. 87, 2011 WL 693579 (per curiam). 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 the sentencing. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006).

Unless a petitioner under Rule 37.1 makes both required showings under the Strickland analysis, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Anderson, ...