Opinion
No. CR12-773
03-14-2013
JAMES W. WEDGEWORTH APPELLANT v. STATE OF ARKANSAS APPELLEE
James W. Wedgeworth , pro se appellant . No response.
APPELLANT'S PRO SE MOTION FOR
EXTENSION OF TIME TO FILE BRIEF
[UNION COUNTY CIRCUIT
COURT, CR 05-444, HON. TED C.
CAPEHEART, JUDGE]
APPEAL DISMISSED; MOTION
MOOT.
PER CURIAM
In 2010, appellant James W. Wedgeworth was found guilty by a jury of capital murder and sentenced to life without parole. We affirmed. Wedgeworth v. State, 2012 Ark. 63.
A prior conviction of capital murder and sentence of life without parole entered against appellant was reversed and remanded by this court for a new trial. Wedgeworth v. State, 374 Ark. 373, 288 S.W.3d 234 (2008).
Subsequently, appellant timely filed in the trial court a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2012). The trial court denied the petition, and appellant has lodged an appeal in this court from the order. Appellant now seeks by pro se motion an extension of time to file his brief-in-chief. As it is clear from the record that appellant could not prevail on appeal if the appeal were permitted to go forward, the appeal is dismissed, and the motion is moot. An appeal from an order that denied a petition for postconviction relief will not be permitted to proceed where it is clear that the appellant could not prevail. Holliday v. State, 2013 Ark. 47 (per curiam); Crain v. State, 2012 Ark. 412 (per curiam); Thacker v. State, 2012 Ark. 205 (per curiam); Little v. State, 2012 Ark. 194 (per curiam); Perry v. State, 2012 Ark. 98 (per curiam); Riddell v. State, 2012 Ark. 11 (per curiam); Hendrix v. State, 2012 Ark. 10 (per curiam); Tucker v. State, 2011 Ark. 543 (per curiam); Jones v. State, 2011 Ark. 523 (per curiam); Eaton v. State, 2011 Ark. 436 (per curiam); Grant v. State, 2011 Ark. 309 (per curiam); Lewis v. State, 2011 Ark. 176 (per curiam); Kelley v. State, 2011 Ark. 175 (per curiam); Morgan v. State, 2010 Ark. 504 (per curiam); Goldsmith v. State, 2010 Ark. 158 (per curiam); Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam); Meraz v. State , 2010 Ark. 121 (per curiam); Smith v. State, 367 Ark. 611, 242 S.W.3d 253 (2006) (per curiam).
In his petition, appellant contended that the judgment entered against him should be vacated on the ground that he was not afforded effective assistance of counsel. Claims of ineffective assistance of counsel alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. Pennington v. State, 2013 Ark. 39 (per curiam); Walton v. State, 2012 Ark. 269 (per curiam). We assess the effectiveness of counsel under the two-prong standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Simmons v. State, 2012 Ark. 58 (per curiam); Croy v. State, 2011 Ark. 284, 383 S.W.3d 367 (per curiam). Under the Strickland test, a claimant must show that counsel's performance was deficient, and the claimant must also show that the deficient performance prejudiced the defense to the extent that the appellant was deprived of a fair trial. Strain v. State, 2012 Ark. 42, ___ S.W.3d ___ (per curiam). A claimant must satisfy both prongs of the test, and it is not necessary to determine whether counsel was deficient if the petitioner fails to demonstrate prejudice as to an alleged error. See Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam); Kelley v. State, 2011 Ark. 504 (per curiam); Mitchem v. State,, 2011 Ark. 148 (per curiam).
When considering an appeal from a circuit court denial of a Rule 37.1 petition, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland, the circuit court clearly erred in holding that counsel's performance was not ineffective. Pennington, 2013 Ark. 39; Jackson v. State, 2013 Ark. 19 (per curiam); Little, 2012 Ark. 194; Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783; Biddle v. State, 2011 Ark. 358 (per curiam). A defendant making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness and that this deficient performance prejudiced the defense. Heard v. State, 2012 Ark. 67 (per curiam).
Appellant first contended that counsel failed to petition the court to appoint an expert to aid in evaluating his mental condition as a mitigating factor in the penalty phase of the trial. He conceded that counsel did call a psychiatric expert, but he argued that the expert had not seen him in several months before the expert interviewed him just before the start of the penalty phase of the trial. Appellant asserted that the expert did not conduct an appropriate examination that would have revealed appellant's incompetence at the time of the offense. In a related argument, appellant claimed that counsel should have raised at trial, and preserved for appeal, his "affirmative defense of competency."
We first note that there was no penalty phase of the trial as such. The State did not seek the death penalty, and the trial concluded when the jury found appellant guilty of capital murder for which a sentence of life without parole was the only sentencing option. With respect to appellant's dissatisfaction with his defense, appellant was examined at least twice before trial, once at the Arkansas State Hospital and again by an expert witness retained by the defense. There was lengthy testimony concerning appellant's competency. Appellant did not allege in his petition what specific information could have been gleaned by a different expert for the defense that would have been favorable to the defense. While he states in conclusory fashion that more effective expert testimony would have produced a different result at his trial, he failed entirely to provide any support for the claim that another evaluation would have brought out facts that could have supported his claim of incompetence. The burden is entirely on the petitioner in a Rule 37.1 proceeding to provide facts that affirmatively support the claims of prejudice. Thacker, 2012 Ark. 205; Jones, 2011 Ark. 523; Payton v. State, 2011 Ark. 217 (per curiam). Neither conclusory statements nor allegations without factual substantiation are sufficient to overcome the presumption that counsel was effective, nor do they warrant granting postconviction relief. Crain, 2012 Ark. 412; Kelley, 2011 Ark. 175; Delamar v. State, 2011 Ark. 81 (per curiam); Eastin v. State, 2010 Ark. 275; Watkins, 2010 Ark. 156 (per curiam). We have repeatedly held that conclusory claims are insufficient to sustain a claim of ineffective assistance of counsel. Reed v. State, 2011 Ark. 115 (per curiam); Wormley v. State, 2011 Ark. 107 (per curiam); Delamar, 2011 Ark. 87.
Appellant next contended that counsel failed to establish that prejudice arising from pretrial publicity denied him a fair trial. The only "publicity" to which appellant referred is that the victim's father was a minister with a large congregation. While a defendant's right to a fair trial may be violated if pretrial publicity is such that an impartial jury cannot be empaneled, appellant offered no facts concerning the publicity surrounding his legal proceeding that demonstrated that the publicity was of an extreme nature or that the voir dire of the jury was insufficient to produce an unbiased jury. As a result, he did not demonstrate that counsel was somehow ineffective in dealing with the publicity occasioned by his being charged with the offense.
Appellant next asserted, without factual support for the basis for an objection, that trial counsel should have challenged the admissibility of the 911 tape "based on the testimony of the police officer had given." He specifically stated, however, that he was not contending that the trial court erred in admitting the tape. Counsel objected at trial to the playing of the tape, and the bare allegation that counsel was somehow remiss in the matter did not meet the Strickland test.
As his fifth allegation, appellant said that he could produce at a hearing an unnamed witness to testify that one of jurors was sleeping during the trial at some unspecified point, but he produced no proof of any kind as to who the witness was who saw the juror asleep or that counsel or any other person in the courtroom was aware of a juror's sleeping. A Rule 37.1 hearing is not available to a petitioner in hopes of finding grounds for relief. Green v. State, 2011 Ark. 357 (per curiam); Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983) (per curiam). Appellant did not meet his burden of showing that there was in fact juror misconduct. An appellant must do more than allege prejudice, he must demonstrate it with facts. Wallace v. State, 2010 Ark. 485 (per curiam).
Appellant further argued that his attorney failed to prove that the evidence was insufficient to sustain the judgment of conviction and that a directed verdict should have been granted in his case. Counsel for appellant made a motion for directed verdict, and appellant failed to state any additional grounds for the motion that counsel could have advanced to the trial court that would have resulted in a directed verdict for the defense. Appellant's bare statement that counsel failed to "raise critical grounds" with no explanation as to what those grounds could have been does not constitute a showing of ineffective assistance of counsel. Trial counsel cannot be found to be ineffective for failing to make an objection or argument unless the petitioner can demonstrate that the objection or argument would have been meritorious. See Lambert v. State, 2012 Ark. 150 (per curiam), see also Strain, 2012 Ark. 42, ___ S.W.3d ___; Reese v. State, 2011 Ark. 492 (per curiam), Abernathy, 2012 Ark. 59, ___ S.W.3d ___, Sandoval-Vega v. State, 2011 Ark. 393, ___ S.W.3d ___ (per curiam).
As his penultimate ground for postconviction relief, appellant alleged that counsel should have raised double jeopardy as a bar to prosecution. The alleged ground for a double-jeopardy argument, as stated by appellant, was incoherent and stated no basis in law for appellant's contention that he was subjected to double jeopardy. He fell far short of demonstrating that counsel could have made a successful challenge to the prosecution. Again, the burden is on the petitioner in a Rule 37.1 proceeding to illustrate prejudice. Pennington, 2013 Ark. 39. While a fundamental claim that would render the judgment in a criminal case void is grounds for relief, even fundamental claims must be supported by facts to demonstrate that a fundamental right was denied to a particular petitioner under the facts of his or her case. Crain, 2012 Ark. 412; Wells v. State, 2012 Ark. 308 (per curiam); see Holt v. State, 281 Ark. 210, 662 S.W.2d 822 (1984).
The last allegation raised by appellant in his petition was the claim that counsel should have talked to the prosecution "to mitigate" before the prosecutor decided to seek a sentence of life without parole. Appellant did not state what counsel could have said at such a meeting to convince the prosecution not to charge him with capital murder, and he offered nothing to establish that counsel was ineffective for failing to arrange a meeting with the prosecution before the charge was even filed.
Finally, it is noted that appellant referred in his petition to errors made by counsel that, when taken as a whole, constituted a showing of ineffective assistance of counsel. We have repeatedly held that the concept of cumulative error is not recognized in Rule 37.1 proceedings when assessing whether a petitioner was afforded effective assistance of counsel. Jackson, 2013 Ark. 19; Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007); Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006); Weatherford v. State, 363 Ark. 579, 215 S.W.3d 642 (2005); Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999); see also State v. Franklin, 351 Ark. 131, 89 S.W.3d 865 (2002) (holding that it was reversible error for the trial court to consider cumulative error in assessing claims of ineffective assistance of counsel).
Appeal dismissed; motion moot.
James W. Wedgeworth, pro se appellant.
No response.