Watson v. State, CR 11-148

• Citation: 2012 Ark. 27
• Decision Date: 26 January 2012
• Docket Number: No. CR 11-148,CR 11-148
• Parties: SHERMAN WATSON APPELLANT v. STATE OF ARKANSAS APPELLEE
• Court: Supreme Court of Arkansas

2012 Ark. 27

SHERMAN WATSON APPELLANT

v.STATE OF ARKANSAS APPELLEE

No. CR 11-148

SUPREME COURT OF ARKANSAS

DATED: January 26, 2012

PRO SE PETITION FOR WRIT OF CERTIORARI AND MOTIONS TO

AMEND PETITION, FOR TRANSCRIPT, FOR EXTENSION OF TIME TO

LODGE RECORD, AND FOR USE OF TRIAL TRANSCRIPT [HOT SPRING

COUNTY CIRCUIT COURT, CR 2007-278, HON. CHRIS E WILLIAMS, JUDGE]

APPEAL DISMISSED; PETITION FOR

WRIT OF CERTIORARI AND MOTIONS MOOT.

PER CURIAM

Appellant Sherman Watson appealed the denial of his pro se petition under Arkansas Rule of Criminal Procedure 37.1 (2011). He filed a number of motions concerning the appeal. This court granted a motion to supplement the record and remanded three times in order to address a jurisdictional issue raised by the record. Watson v. State, 2011 Ark. 482 (per curiam); Watson v. State, 2011 Ark. 268 (per curiam); Watson v. State, 2011 Ark. 202 (per curiam). The issue to be resolved on remand was the date that appellant's Rule 37.1 petition was first tendered to the circuit clerk for filing.

The record first presented to this court in this appeal contained a single petition that was file marked well after the time allowed for filing a Rule 37.1 petition and, thus, raised a jurisdictional issue, in that the timely filing of a Rule 37.1 petition is jurisdictional. Watson, 2011 Ark. 202. The trial court has now returned an order finding that appellant's petition was timelytendered for filing on December 9, 2009. Appellant tendered a petition within the required time, and, although the circuit clerk marked the petition as filed on a later date, the later filing date marked was clerical error. See Meraz v. State, 2010 Ark. 121 (citing White v. State, 373 Ark. 415, 284 S.W.3d 64 (2008) (per curiam)). The trial court therefore properly treated the petition as timely filed.

Having determined that jurisdiction lies, we nevertheless dismiss the appeal based upon the record as amended. Appellant's petition for writ of certiorari and his motions are rendered moot as a result.

An appeal from an order that denied a petition for a postconviction remedy will not be permitted to go forward where it is clear that the appellant could not prevail. Croft v. State, 2010 Ark. 83 (per curiam); Crain v. State, 2009 Ark. 512 (per curiam). Appellant did not present sufficient facts in his petition, or in the hearing on the petition,¹ to support a claim for postconviction relief under the rule.

The supplemented record shows that appellant filed a proposed amendment to the petition that included additional claims. The record of the hearing on the Rule 37.1 petition indicates that the trial court considered claims raised in the amendment as well as those raised in the petition, and the court then denied the petition. This court does not reverse a denial ofpostconviction relief unless the trial court's findings are clearly erroneous. Mitchem v. State, 2011 Ark. 148 (per curiam). The trial court's ruling denying relief on the claims was not clearly error.

The majority of appellant's claims were assertions that the evidence against him was not sufficient, raised in various ways. Claims challenging the sufficiency of the evidence are a direct attack on the judgment and are not cognizable in Rule 37.1 petitions. Delamar v. State, 2011 Ark. 87 (per curiam). Assertions of trial error, even those of constitutional dimension, must be raised at trial and on appeal. Id. Appellant's claim of actual innocence was 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. Travis v. State, 2010 Ark. 341 (per curiam). Prosecutorial misconduct, another claim raised by appellant multiple times, is not a claim cognizable in a Rule 37.1 petition. Id.

Appellant did raise a number of claims of ineffective assistance of counsel, which, in contrast to direct attacks on the judgment, are collateral challenges that may be cognizable in Rule 37.1 proceedings. Davenport v. State, 2011 Ark. 105 (per curiam). The trial court found that appellant failed to demonstrate prejudice from the alleged ineffective assistance.

In order to prevail on any claim of ineffective assistance of counsel, a petitioner is required to demonstrate prejudice in that the alleged error would have impacted the outcome of the trial. Wormley v. State, 2011 Ark. 107 (per curiam). For a claim of ineffective assistance based on failure to investigate, a petitioner must describe how a more searching pretrial investigation would have changed the results of his trial. Id. (citing McCraney v. State, 2010 Ark. 96, _ S.W.3d _ (per curiam)).

Appellant alleged that his attorney was ineffective for failing to conduct furtherinvestigation and for failing to put on evidence that appellant contended would have been favorable to him concerning surveillance-camera video and witnesses who saw appellant while he was in the Sears store from which certain merchandise was stolen. Appellant did not provide affidavits or other statements from the witnesses that indicated any potential testimony that would have exonerated appellant. He did not introduce the video that he claimed would have shown that he did not have the opportunity to steal the merchandise, nor did he establish that the video existed and would have been admissible as evidence.

Appellant also alleged that counsel was ineffective for failing to file two motions, one to suppress evidence from a search of the car appellant had been in prior to his arrest and one to sever the prosecution of the two charges. Appellant failed to demonstrate that counsel could have pursued a successful motion as to either claim.

Appellant did not show that counsel could have demonstrated that the two theft charges were not part of a single scheme or plan, as the testimony by appellant's codefendants at trial indicated. See Ark. R. Crim. P. 22.2(a) (2010); see also Turner v. State, 2011 Ark. 111, _ S.W.3d _. Appellant did not show that counsel would have had a basis on which to successfully

challenge the vehicle search. The bases to...