Van Winkle v. State

• Decision Date: 10 March 2016
• Docket Number: No. CR–15–324,CR–15–324
• Citation: 486 S.W.3d 778,2016 Ark. 98
• Parties: David Van Winkle, Appellant v. State of Arkansas, Appellee
• Court: Arkansas Supreme Court

2016 Ark. 98

486 S.W.3d 778

David Van Winkle, Appellant

v.State of Arkansas, Appellee

No. CR–15–324

Supreme Court of Arkansas.

Opinion Delivered March 10, 2016

John Wesley Hall, Jr., Sarah M. Pourhosseini, Little Rock, and John R. Van Winkle, for appellant.

Leslie Rutledge, Att'y Gen., by: David Raupp, Christian Harris, and Vada Berger, Ass't Att'ys Gen., for appellee.

PAUL E. DANIELSON

, Associate Justice

Appellant David Van Winkle was convicted in the Polk County Circuit Court of kidnapping, aggravated residential burglary, first-degree stalking, third-degree battery, first-degree assault, and first-degree terroristic threatening. He was sentenced to a total of fifty-two years' imprisonment, which included a twelve-year firearm enhancement. The Arkansas Court of Appeals affirmed. Van Winkle v. State, 2014 Ark. App. 591, 445 S.W.3d 542

. Van Winkle subsequently filed a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2015). The circuit court denied the petition without a hearing. Van Winkle now appeals, arguing four points in support of reversal: (1) that his trial counsel was ineffective for failing to present his only viable defense, which is that he was actually innocent; (2) that his trial counsel was ineffective for failing to move for a change of venue; (3) that his sentence for employing a firearm in the commission of an offense is void as both structural error and ineffective assistance of trial counsel; and (4) that the circuit court erred in denying his request for a hearing. We affirm the denial of postconviction relief.

In order to assess Van Winkle's ineffective-assistance arguments, some discussion of the underlying facts is necessary. Van Winkle was a dentist practicing in Mena; the victim in this case, M.O., was one of his patients. According to her testimony, Van Winkle extracted two of her teeth and gave her a prescription for hydrocodone

. She was concerned about the prescription because she had a history of drug addiction and was participating in drug court at the time. M.O.'s use of the hydrocodone “start[ed] to get out of hand” after the first extraction. She and Van Winkle discussed hiding pills from her probation officer, and he offered to give her refills as needed in order to ensure that her “pill count” was acceptable. After the second extraction, Van Winkle told M.O. that her probation officer had come by his office to look at her file. The probation officer had also asked to see Van Winkle's ledger, and Van Winkle offered to meet with M.O. in person to discuss that. They met once at M.O.'s home and three times at Van Winkle's home in order to get their “stories straight.”

On the last occasion, Van Winkle asked M.O. how important it was that her probation officer not see the real ledger. She responded that it was “pretty damned important,” and he wondered “what would [she] be willing to do in order to keep that from happening.” Van Winkle told M.O. that he would make sure that she never saw her husband or her child again and that she would go to prison for a really long time if she did not give him a couple hours of her time. He then forced her to perform oral sex on him.

A week later, M.O. called Van Winkle's office and obtained another hydrocodone

refill from his staff. Van Winkle sent M.O. several text messages that night while she was at work, inquiring about her pain and making arrangements for future refills. M.O. testified that she left work at approximately 12:30 a.m., gave a coworker a ride home, and then drove to her home in Hatfield. She walked in her front door and immediately went to turn on a light that she usually left on while she was at work. She then heard a bedroom door creak and turned around to see Van Winkle standing there, pointing a pistol at her. He tackled her to the ground, wrestled her arms behind her, zip tied her wrists behind her back, and forced her face-down over an ottoman. M.O. stated that she was able to flip over on her back and break the zip ties. She started “scratching and fighting” and begged him to wear a condom. Van Winkle pulled a screwdriver out of his back pocket and hit her over the eye with it. He told her to be still if she ever wanted to see her little boy again. She said that she would do whatever he wanted, and he replied, “I know you will.” He zip tied her wrists again and placed a piece of duct tape over her mouth. He then pulled her up by her shirt collar and told her that they were “going to take a little walk.” When he opened the door, M.O. was able to break free and run to a neighbor's home.

The neighbor called 911. M.O.'s husband also contacted law enforcement. He had been in Lowell at the time and was on the phone with M.O. as she drove home from work. He heard her scream in fright shortly after she arrived home, and he then heard what sounded like her phone hitting the floor before the call ended. When law enforcement arrived on the scene, they observed Van Winkle's truck parked off the road, approximately 100 yards from M.O.'s home. They also saw Van Winkle walking quickly toward his truck, coming from the direction of M.O.'s home; he was carrying a gun in his left hand. Van Winkle did not respond to initial commands to drop his weapon and get on the ground, but he eventually complied and was taken into custody. The gun was loaded.

Police conducted a search incident to arrest and found a screwdriver in Van Winkle's right back pocket and two pieces of rope in his left back pocket. Law enforcement also responded to the neighbor's home, where they found M.O. She was hysterical, her clothing was in disarray, and she had zip ties on both wrists. There were signs of forced entry at M.O.'s home, including removed window screens and pry marks on the front and back doors. Inside her home, police found her cell phone underneath the couch, one zip tie, a roll of pennies wrapped in duct tape, and signs of a scuffle, including overturned furniture. A piece of duct tape was found in M.O.'s yard, between her home and her neighbor's home, and a roll of duct tape was recovered from Van Winkle's residence. In Van Winkle's truck, police found a cell phone that had been taken apart and a pair of zip ties.

Van Winkle was charged with kidnapping, aggravated residential burglary, first-degree stalking, second-degree battery, aggravated assault, and first-degree terroristic threatening. The jury convicted him on all charges, reducing the second-degree-battery charge to third degree and reducing the aggravated-assault charge to first degree. The jury also found that Van Winkle had used a firearm in the commission of all offenses except for the battery; it imposed a twelve-year sentence enhancement for his use of a firearm in the commission of the kidnapping. The twelve-year firearm enhancement and the forty-year sentence for aggravated residential burglary were ordered to run consecutively, for a total of fifty-two years' imprisonment. On appeal, Van Winkle challenged the sufficiency of the evidence supporting four of his six convictions: kidnapping, aggravated residential burglary, first-degree stalking, and third-degree battery. Van Winkle, 2014 Ark. App. 591, 445 S.W.3d 542

. The court of appeals concluded that each of the challenged convictions was supported by substantial evidence. Id.

On January 15, 2015, Van Winkle filed the instant Rule 37 petition, which raised three issues. First, he argued that he was physically incapable of committing the offenses because he is legally blind without his glasses, deaf without his hearing aids, and has a debilitating back ailment; thus, he contended, his trial counsel was ineffective for failing to present an actual-innocence defense. Second, he argued that his trial counsel was ineffective for failing to file a motion for change of venue because extensive pretrial publicity prevented him from receiving a fair trial in either Polk or Montgomery County. Third, he argued that his trial counsel was ineffective for failing to object to the jury instruction concerning the firearm enhancement, as it did not require proof beyond a reasonable doubt. Van Winkle further contended that the failure to properly instruct the jury was structural error rendering his sentence on the firearm enhancement void. The circuit court issued a letter opinion on February 12, 2015, finding that Van Winkle was entitled to no relief and that a hearing would be unnecessary. The court entered its order denying Van Winkle's Rule 37 petition on February 18, 2015. In short, the court found that the first two issues concerned matters of trial strategy, not ineffective assistance of counsel, and that the third issue concerned a trial error that could have been addressed on direct appeal. Van Winkle now appeals.

This court does not reverse a denial of postconviction relief unless the circuit court's findings are clearly erroneous. See, e.g. , Beverage v. State, 2015 Ark. 112, 458 S.W.3d 243

. 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 made. See

id. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. See

id.

On review of claims of ineffective assistance of counsel, this court follows the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

. See, e.g. , Taylor v. State, 2015 Ark. 339, 470 S.W.3d 271. 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. See

id. 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...