Wheeler v. State, CR–15–76
| Citation | 463 S.W.3d 678,2015 Ark. 233 |
| Decision Date | 21 May 2015 |
| Docket Number | No. CR–15–76,CR–15–76 |
| Parties | Timothy L. Wheeler, Appellant v. State of Arkansas, Appellee |
| Court | Supreme Court of Arkansas |
In 2013, a jury found appellant Timothy L. Wheeler guilty of first-degree battery and sentenced him to 360 months' imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed the judgment. Wheeler v. State, 2014 Ark. App. 281, 2014 WL 1856722. Wheeler subsequently filed in the trial court a pro se petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2014) that was denied. He lodged an appeal from that order in this court. Wheeler filed five motions in which he sought an extension of time to file his brief, access to the transcript, and appointment of counsel. Wheeler then filed his brief, and he has now filed a motion to supplement the brief and tendered a supplemental brief with the motion. The State filed a motion for an extension of brief time along with its response to the motion to supplement. Because we dismiss the appeal, the motions are moot.
When it is clear from the record that the appellant cannot prevail if an appeal of an order that denies postconviction relief is permitted to go forward, we dismiss the appeal. Winters v. State, 2014 Ark. 399, 441 S.W.3d 22 (per curiam). Here, it is clear from the record that Wheeler's petition under Rule 37.1 failed to set forth a meritorious claim for relief, and he therefore cannot prevail on appeal.
A brief summary of the evidence presented at trial is necessary to understand the issues. A police officer picked Wheeler up near a location in North Little Rock where two witnesses saw a man fitting Wheeler's description strike Jason Bernard with a large stick or board. One of the witnesses, Marlando Collins, identified Wheeler to an officer on the scene and in court. Collins testified that he saw two men arguing from his car, that he circled the block and observed Wheeler grab a stick or board and strike Bernard as Bernard was walking away. Collins stated in his testimony that, after Bernard fell face first onto the cement sidewalk, Wheeler struck him again, kicked him several times, and threw the implement on the ground before walking away. A doctor who treated Bernard at the hospital that night testified concerning Bernard's injuries. Bernard's mother, Wanda Jean Campise, testified that Bernard was no longer able to care for himself and required assistance to bathe or dress.
In his Rule 37.1 petition, Wheeler alleged that trial counsel was ineffective for failing to have an expert “interpret” the medical information, for failing to use evidence of the victim's legal problems and drug use to support Wheeler's claim of self defense, for failing to impeach the victim's mother with a felony conviction, for failing to impeach Collins about inconsistent statements, for failing to object to the admission of a stick found at the scene as the weapon, for failing to object when the prosecutor made a statement while Wheeler was testifying indicating that the victim would have been better off if Wheeler had pushed Bernard into traffic, for failing to object to the seating of a juror whose father worked for the railroad, for failing to investigate a 911 call involving Bernard at Wheeler's house ten days before the incident, for failing to object to sentencing under the wrong statute, for failing to object to the prosecutor stating that the victim was hit in the back of the head, and for failing to object to admission of a statement by an officer that Wheeler had been in a previous altercation with Bernard even though a tape from the officer's vehicle's recorder was not admitted.1 In addition, Wheeler alleged that he was prejudiced because the trial judge did nothing when he complained that his attorney was given co-counsel only four days before trial. Woven into Wheeler's allegations of ineffective assistance are a number of assertions that the evidence was insufficient to support the judgement.
Wheeler's claims of insufficient evidence and trial error concerning the failure of the judge to grant a continuance or other relief when co-counsel was appointed are not claims cognizable in proceedings under Rule 37.1. Generally, Rule 37 does not provide a remedy when an issue could have been raised at trial or argued on appeal. State v. Rainer, 2014 Ark. 306, 440 S.W.3d 315. Claims of mere trial error and challenges to the sufficiency of the evidence are not grounds for relief under Rule 37.1. See Stewart v. State, 2014 Ark. 419, 443 S.W.3d 538 (per curiam).
Wheeler's claims of ineffective assistance of counsel, although cognizable, did not include sufficient factual substantiation to support his claims. Such unsupported claims do not provide a basis for postconviction relief. See Young v. State, 2015 Ark. 65, 2015 WL 854754. In making that determination, our review follows the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 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. Mister v. State, 2014 Ark. 446, 2014 WL 5494016.
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.” Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29. Unless a petitioner under Rule 37 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. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883.
There is a strong presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance, and an appellant 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. Stewart, 2014 Ark. 419, 443 S.W.3d 538. This court has held that a claimant must show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors in order to meet the second prong of the test. Sales, 2014 Ark. 384, 441 S.W.3d 883. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The burden is entirely on the claimant to provide facts that affirmatively support his claims of prejudice. Mister, 2014 Ark. 446, 2014 WL 5494016. In those instances when appellant alleged deficient performance, appellant's claims did not include sufficient facts to meet that burden.
A number of Wheeler's claims alleged that counsel was ineffective for failure to investigate potential evidence. Under the applicable standard, a petitioner who asserts ineffective assistance for failure to investigate must show that further investigation would have been fruitful. Young v. State, 2015 Ark. 65, 2015 WL 854754. In addition to identifying specific materials that counsel could have uncovered, the petitioner must also show that those items discovered would have been sufficiently significant to raise a reasonable probability of a different outcome at trial. Id. Wheeler did not show that counsel could have uncovered sufficiently significant information that would raise a reasonable probability of a different outcome if counsel had further investigated the medical information, Bernard's legal problems and possible drug addiction, or the 911 call for Wheeler's previous altercation with Bernard.
Wheeler identified no specific evidence that he alleged counsel may have presented at trial as a result of further investigation. To the extent that he alleged generally that there was evidence that the victim was a drug addict, Wheeler made little more that conclusory statements concerning how this evidence would have furtheredhis defense. Conclusory claims such as Wheeler made in the petition fail to demonstrate prejudice or support postconviction relief. See McNichols v. State, 2014 Ark. 462, 448 S.W.3d 200 (per curiam); Nalls v. State, 2014 Ark. 434, 445 S.W.3d 509 (per curiam).
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