Walden v. State

• Decision Date: 15 September 2016
• Docket Number: No. CR-14-447,CR-14-447
• Citation: 498 S.W.3d 725,2016 Ark. 306
• Parties: Larry Eugene Walden, Appellant v. State of Arkansas, Appellee
• Court: Arkansas Supreme Court

2016 Ark. 306

498 S.W.3d 725

Larry Eugene Walden, Appellant

v.State of Arkansas, Appellee

No. CR-14-447

Supreme Court of Arkansas.

Opinion Delivered September 15, 2016

Larry E. Walden, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., Little Rock, for appellee

PER CURIAM

In 2011, appellant Larry Eugene Walden was found guilty by a jury of aggravated robbery and sentenced as a habitual offender to 720 months' imprisonment. The Arkansas Court of Appeals affirmed. Walden v. State , 2012 Ark. App. 307, 419 S.W.3d 739

.

Walden subsequently filed in the trial court a timely, verified petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1

(2011). The petition was denied, and Walden appealed to this court. We reversed the order and remanded the matter to the trial court for entry of an order that complied with Rule 37.3(a). Walden v. State , 2014 Ark. 10 (per curiam).

On remand, the trial court held a hearing on the petition and again denied postconviction relief. Walden brings this appeal. Any issues that were argued below, but not raised in this appeal, are considered abandoned. Williams v. State , 2011 Ark. 489, 385 S.W.3d 228

.

Walden's Rule 37.1

petition was based on numerous claims that his trial attorney, Timothy Sharum, was ineffective, all of which the trial court rejected. We find no error and affirm the order.

This court will not reverse the trial court's decision granting or denying postconviction relief unless it is clearly erroneous. 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. Id. 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel's performance was not ineffective. Taylor v. State , 2013 Ark. 146, 427 S.W.3d 29. 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. Adkins v. State , 2015 Ark. 336, 469 S.W.3d 790. 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. Holloway v. State , 2013 Ark. 140, 426 S.W.3d 462. 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. Howard v. State , 367 Ark. 18, 238 S.W.3d 24 (2006)

. 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. Houghton v. State , 2015 Ark. 252, 464 S.W.3d 922. Finally, conclusory statements that counsel was ineffective cannot be the basis for postconviction relief. Id. ; Anderson v. State , 2011 Ark. 488, 385 S.W.3d 783.

The charge of aggravated robbery against Walden arose from an incident at a bank in Fort Smith in 2009 in which Walden handed a teller a bag with a note that said, “This is a robbery. I have a gun. Give me all your money, no red dye pack.” The teller testified that she took money from her till and placed it in the bag because of Walden's “menacing scowl” and the implied threat to her life. Prior to instruction of the jury by the trial court, Walden requested an instruction on the lesser-included offense of robbery. The trial court declined to give the instruction on robbery. On direct appeal, the court of appeals did not reach the trial court's decision to deny the instruction on the lesser-included offense of robbery because Walden did not proffer the instruction. Walden , 2012 Ark. App. 307, 419 S.W.3d 739

.

Walden alleged in his Rule 37.1

petition that the failure of his counsel, Sharum, to proffer the instruction amounted to ineffective assistance of counsel because the instruction was warranted and because the court of appeals would have reversed the judgment had the proffer been given. The trial court held in its order that counsel was not ineffective because Walden was not entitled to the instruction on the ground that the evidence that Walden had committed aggravated robbery was conclusive; therefore, there was no requirement that the jury be instructed on mere robbery.

We agree. We need not reiterate the discussion by the court of appeals in its decision finding that Walden's conduct satisfied the elements of aggravated robbery as defined by Arkansas Code Annotated section 5–12–103

(Repl. 2006). Walden , 2012 Ark. App. 307, at 6–7, 419 S.W.3d at 743. As there was substantial evidence that Walden committed aggravated robbery, he did not establish that there is a reasonable probability that the outcome of his trial would have been different had the lesser-included-offense instruction been given or that the court of appeals would have reversed the judgment had there been a proffer of the instruction. See

Sweet v. State , 2011 Ark. 20, 370 S.W.3d 510 (holding that when the evidence adduced at trial was conclusive to show that aggravated robbery was committed, the trial court was not required to administer a jury instruction on the lesser-included offense of ordinary robbery).

Walden's next point for reversal of the trial court's order pertains to his having been convicted as a habitual offender at the Arkansas trial based on his prior convictions in federal court in Oklahoma of three counts of robbery. Walden contended in his Rule 37.1

petition, as he does in this appeal, that Sharum was ineffective on the ground that Sharum, before Walden was tried for aggravated robbery in Arkansas, erred in advising him to plead guilty to the three robbery counts in federal court in Oklahoma and thus caused him to be sentenced as a habitual offender in Arkansas.

The trial court noted in its order that Sharum had no authority to advise Walden on his pending federal charges,¹ that Sharum testified at the hearing that he had told Walden to listen to his attorney in the federal court proceedings, and that Walden admitted at the Rule 37.1

hearing that Sharum had not expressly advised him to plead guilty in federal court. Rather, Walden contended at the hearing that Sharum was remiss by not communicating with him about the federal court pleas and that he should have “stepped in and done something about it,” and faulted Sharum for not advising him “in any way, shape, or form.” It appears that Walden's allegations concerning Sharum's conduct with respect to the federal court pleas were founded on the erroneous assumption that Sharum had an obligation to advise him about the federal court pleas because those pleas might affect his status as a habitual offender in his Arkansas trial. If so, he did not demonstrate that Sharum had such a duty or that he was remiss within the bounds of Strickland in the Arkansas proceedings by not advising him on the federal charges.

Next, Walden argues that Sharum erred by resting the defense case without permitting him to testify on his own behalf. The Supreme Court of the United States has held that a criminal defendant has a right to testify on his own behalf if he chooses to do so. Rock v. Arkansas , 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)

. Counsel may only advise the accused in making the decision. Sartin v. State , 2012 Ark. 155, at 7–8, 400 S.W.3d 694, 699–700 ; Chenowith v.

State , 341 Ark. 722, 19 S.W.3d 612 (2000) (per curiam). This court has consistently held, however, that the mere fact that a defendant did not testify is not, in and of itself, a basis for postconviction relief. See, e.g. , Dansby v. State , 347 Ark. 674, 66 S.W.3d 585 (2002). Ordinarily, counsel's advice to the defendant not to testify is simply a matter of trial strategy. Williams v. State , 2011 Ark. 489, at 12, 385 S.W.3d 228, 237 ; Chenowith , 341 Ark. at 734, 19 S.W.3d at 618. The lack of success with trial tactics in obtaining an acquittal does not equate with ineffective assistance of counsel. O'Rourke v. State , 298 Ark. 144, 154, 765 S.W.2d 916, 922 (1989) ; see also

Fink v. State , 280 Ark. 281, 658 S.W.2d 359 (1983).

Timothy Sharum testified at the evidentiary hearing that he had discussed with Walden before trial whether he should testify. Sharum further testified that, after observing Walden testify at a pretrial hearing, he made the strategic decision to advise Walden not to testify at trial. Counsel also feared that cross-examination of Walden by the State concerning the three prior robbery convictions in federal court would have been detrimental to the defense.

Sharum further said that he asked the court at the close of the defense case for a moment to confer with Walden. He asked Walden at that time if he wished to take the stand, and Walden confirmed that he did not. Another attorney, Christina Scherrey, who sat with Sharum at the...