Travis v. State Of Ark.

• Decision Date: 23 September 2010
• Docket Number: No. CR 08-1320,No. CR. 2006-202,CR 08-1320,CR. 2006-202
• Citation: 2010 Ark. 341
• Parties: KENNY TRAVIS, JR. Appellant v. STATE OF ARKANSAS, Appellee
• Court: Arkansas Supreme Court

2010 Ark. 341

KENNY TRAVIS, JR. Appellant

v.STATE OF ARKANSAS, Appellee

No. CR 08-1320

No. CR. 2006-202

Supreme Court Of Arkansas

Opinion Delivered: September 23, 2010

APPEAL FROM THE CIRCUIT COURT OF MISSISSIPPI COUNTY, CHICKASAWBA DISTRICT, HON. VICTOR L. HILL, JUDGE

AFFIRMED.

PER CURIAM

In 2006, a jury found appellant Kenny Travis, Jr., guilty of capital murder and aggravated robbery and sentenced him to an aggregate term of life without parole. This court affirmed the judgment. Travis v. State, 371 Ark. 621, 269 S.W.3d 341 (2007). Appellant timely filed a pro se petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2010) that was denied. We granted appellant's motion, filed by retained counsel, for a belated appeal. Travis v. State, 375 Ark. 244, 289 S.W.3d 474 (2008) (per curiam).

On appeal, appellant raises two points, as follows: (1) the trial court erred in denying the Rule 37.1 petition without an evidentiary hearing; (2) the order entered did not contain findings of fact as required by Arkansas Rule of Criminal Procedure 37.3 (2010). We find no reversible error and affirm.

The circuit court need not hold a hearing on a Rule 37.1 petition when the petition and the files and the records of the case conclusively show that the petitioner is entitled to no relief. Ark. R. Crim. P. 37.3(a). Under Rule 37.3(a), the trial court is required to make written findings to that effect, specifying any parts of the files or records that are relied upon to sustain the court's findings. Id.; see also Polivka v. State, 2010 Ark. 152, _S.W.3d_. Here, the trial court made only broad, general findings that the evidence was overwhelming and that appellant received a fair trial, without addressing the individual allegations listed. This court will affirm the denial of a Rule 37.1 petition notwithstanding the circuit judge's failure to make adequate written findings under Rule 37.3 in two circumstances, as follows: (1) where it can be determined from the record that the petition is wholly without merit; (2) where the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted. Shaw v. State, 2010 Ark. 112 (per curiam). Here, regardless of the sufficiency of the trial court's findings in the order, we can determine from the record that the petition was wholly without merit.¹

In the petition, appellant alleged ineffective assistance of counsel for failure to act to ascertain the time of the victim's death in order to prepare an alibi defense, failure to object to an incorrect statement in the information concerning the date of the charged crime, failure to obtain a ruling as to the admission of a cell phone into evidence, failure to object to testimony by witnesses not excluded from the courtroom during testimony, and failure to object to the use of perjured testimony by the prosecution. Appellant also raised claims of prosecutorial misconduct, double jeopardy, actual innocence, actual and constructive denial of counsel, and denial of due process.

A number of appellant's claims are conclusory, not supported with a factual basis, or are not claims cognizable in a Rule 37. 1 proceeding. Prosecutorial misconduct is not a claim cognizable in a Rule 37. 1 petition. Howard v. State, 367 Ark. 18, 238 S. W. 3d 24 (2006). A claim of actual innocence is a direct attack on the judgment and a challenge to the sufficiency of the evidence that is not cognizable in a Rule 37. 1 proceeding. See Bell v. State, 2010 Ark. 65, _S. W. 3d_(per curiam). Appellant's claims of actual and constructive denial of counsel and denial of due process were stated in the petition as bare, conclusory allegations without factual development of any kind. Conclusory statements cannot be the basis of postconviction relief. State v. Brown, 2009 Ark. 202, _S. W. 3d. _.

Even those claims in the petition that contained some factual allegations failed to allege facts sufficient to support the claim. Appellant alleged a double jeopardy violation in that hewas convicted of capital murder and aggravated robbery when the robbery charge was used to prove the capital murder charge. The circuit court would not have had authority to sentence appellant for a charged felony and the underlying felony under prior law. See Clark v. State, 373 Ark. 161, 282 S. W. 3d 801 (2008) (citing Walker v. State, 353 Ark. 12, 110 S. W. 3d 752 (2003)). Under the law applicable here, however, separate convictions and sentences are authorized for capital murder and any felonies utilized as underlying felonies for the murder. Ark. Code Ann. § 5-1-110(d)(1)(A) (Supp. 2007); Harper v. State, 359 Ark. 142, 194 S. W. 3d 730 (2004).

Appellant's claims of ineffective assistance of counsel were also without merit. Appellant provided only conclusory allegations in support of his claim that counsel should have objected to perjured testimony; he did not offer any basis for a successful objection to the testimony or supporting facts for the claim that the testimony was false. Ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. Britt v. State, 2009 Ark. 569, _S. W. 3d_ (per curiam). As a reflection of this requirement, counsel is not ineffective for failing to make an argument that is meritless. Johnson v. State, 2009 Ark. 553 (per curiam). The petition must provide facts that affirmatively support an appellant's claims, and conclusory statements cannot form the basis of postconviction relief. Id. Appellant failed to present a meritorious claim because he failed to demonstrate that counsel could have made a meritorious objection.

Appellant did set out a basis for an objection to the admission of the cell phone into evidence. In the petition, appellant asserts that counsel was ineffective because counsel shouldhave renewed his motion to exclude the evidence on the basis that the chain of custody was not properly established. Even so, appellant failed to set forth facts to support that allegation in that he did not state facts to demonstrate any prejudice from the alleged error.

The standard of review on appeal from a trial court's denial of postconviction relief as to a claim of ineffective assistance of counsel is the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U. S. 668 (1984). French v. State, 2009 Ark. 443 (per curiam). Under the Strickland test, a claimant must show that counsel's performance was deficient, and the claimant must also show that this deficient performance prejudiced his defense so as to deprive him of a fair trial. Id., at 3; Walker v. State, 367 Ark. 523, 241 S. W. 3d 734 (2006) (per curiam). A claim of ineffective assistance must therefore state facts sufficient to satisfy both prongs of the Strickland test.

The cell phone was admitted into evidence to provide the jury with statements appellant made that were recorded by one of the witnesses. The witness also testified about the statements that appellant made, and the defense cross-examined the witness both about the time that he held the phone before turning it over to the police and the potential for tampering with the phone. Even if appellant had established his allegation of error in failing to contest admission of the phone, he did not demonstrate that he could have established that the admission of the phone prejudiced his defense.

Appellant's claim of ineffective assistance as a result of failure by counsel to oppose or appeal the admission of testimony from two witnesses was based on appe...