Swain v. State, 515 S.W.3d 580

Heather Swain was tried and convicted by a jury as an accomplice to capital murder and kidnapping after the victim was kidnapped, beaten to death, and left in a ditch; she received life without parole for murder and 25 years for kidnapping.
The court of appeals (this Court) affirmed the conviction on direct review in Swain v. State, 2015 Ark. 132.
Swain filed a Rule 37 postconviction petition arguing (1) ineffective assistance of counsel because trial counsel called accomplice Alan Swinford to testify without interviewing him, and (2) her life sentence was disproportionate and penalized her for exercising her right to trial because co‑defendants who pled guilty received lighter sentences.
At the Rule 37 hearing, trial counsel testified he did not interview Swinford because Swinford’s counsel indicated Swinford did not want to talk, but counsel had prior transcripts of Swinford’s statements and believed calling him was a trial strategy to show relative culpability.
On cross, Swinford testified that Swain slapped the victim and instigated further violence, but on direct he had described his own intoxication and aggression; the circuit court found counsel’s decision was strategic and denied relief.
Swain appealed the Rule 37 denial; the court affirmed the ineffective‑assistance ruling and declined to address the sentencing/prosecution‑penalty claim because it was not preserved and did not constitute a fundamental error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for calling accomplice Swinford without interviewing him	Swain: counsel should not have called Swinford without interviewing him; doing so was deficient and prejudicial	State: counsel had prior transcripts, Swain requested the witness, and calling him was reasonable trial strategy to show comparative culpability	Counsel’s decision was strategic; no ineffective assistance found
Whether Swain’s life sentence was disproportionate compared to co‑defendants who pled guilty	Swain: her life sentence punished her for exercising right to jury trial and was disproportionate given lesser sentences of co‑defendants	State: sentencing was within statutory limits; disparities among defendants are not a basis for Rule 37 relief and issue was not preserved for collateral review	Not reached on merits; claim waived in Rule 37 because not preserved and not a fundamental error

Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong ineffective‑assistance standard: deficient performance and prejudice)
Feuget v. State, 2015 Ark. 43 (Ark. 2015) (presumption that counsel’s conduct is reasonable; petitioner’s burden to show otherwise)
Noel v. State, 342 Ark. 35 (Ark. 2000) (trial strategy and tactics generally not grounds for ineffective‑assistance relief)
Fukunaga v. State, 2016 Ark. 164 (Ark. 2016) (reasonable trial strategy does not constitute deficient performance)
Philyaw v. Kelley, 2015 Ark. 465 (Ark. 2015) (court will not compare or reduce sentences within statutory limits)
Collins v. State, 324 Ark. 322 (Ark. 1996) (constitutional issues must be raised at trial and on direct appeal unless error is fundamental)
Finley v. State, 295 Ark. 357 (Ark. 1988) (Rule 37 is not a vehicle to raise nonfundamental trial errors for the first time)