Butler v. State, 384 S.W.3d 526

Appellant Ellis Charles Butler was convicted in Faulkner County in 1997 of three counts of rape and four counts of violation of a minor in the first degree, with lengthy consecutive sentences totaling 60 years.
On direct appeal, this court reversed and remanded due to trial-court error in failing to grant a continuance when new counsel was hired.
Butler was retried in 2001, convicted on three counts of rape, and sentenced to 96 years total; the conviction was affirmed on direct appeal.
Clerk-related errors led to multiple Rule 37.1 postconviction petitions; the trial court eventually denied an amended petition, and this court remanded for proper consideration of the petitions.
In his Rule 37.1 petition through counsel, Butler asserted ineffective assistance of trial counsel on four grounds, including vindictive sentencing, an implied dynamite instruction, failure to strike a juror for cause, and voir dire references to Butler’s prior rape case.
The circuit court denied relief, and Butler timely appealed, with this court affirming the denial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel were ineffective for vindictive sentencing analysis.	Butler contends vindictive sentencing after retrial warranted objections.	State asserts no presumption of vindictiveness since different judges sentenced on retrial.	No actual vindictiveness proven; presumption not applicable due to different sentencers; counsel not ineffective.
Whether counsel was ineffective for the implied dynamite instruction issue.	Counsel failed to challenge an implied dynamite instruction.	Record insufficient to show reversible error; no authority cited.	Argument waived for lack of supporting authority; no reversible error found.
Whether counsel was ineffective for failing to strike a juror for cause.	Juror expressed belief that some children are not truthful, implying bias.	Decision to keep juror was trial strategy; no prejudice shown.	No ineffective assistance; juror not demonstrated to be actually biased.
Whether counsel was ineffective for voir dire reference to Butler’s prior rape conviction.	Reference to prior conviction prejudiced the jury.	No authority shown to support claim of ineffectiveness.	No reversible error; argument not convincing without authority.

Pearce v. state's presumption of vindictiveness, 395 U.S. 711 (U.S. Supreme Court, 1969) (presumption of vindictiveness when retrial yields harsher sentence, limited by later rulings)
Chaffin v. Stynchombe, 412 U.S. 17 (U.S. Supreme Court, 1973) (jury sentencing after retrial may negate Pearce presumption)
McCullough v. Wasman, 475 U.S. 134 (U.S. Supreme Court, 1986) (presumption not applicable when different sentencers impose sentences; actual vindictiveness required for relief)
Colten v. Kentucky, 407 U.S. 104 (U.S. Supreme Court, 1972) (Pearce presumption not required in two-tier systems; can still prove actual vindictiveness)
Alabama v. Smith, 490 U.S. 794 (U.S. Supreme Court, 1989) (presumption not apply when increase follows guilty plea; must show actual vindictiveness)
Wasman v. United States, 468 U.S. 559 (U.S. Supreme Court, 1984) (scope of vindictiveness relief when retrial or resentencing occurs)