Sylvester v. State, 2017 Ark. 309

Ardwin Sylvester was convicted by a jury of kidnapping, rape, and aggravated robbery and sentenced to three concurrent life terms; convictions and sentences were previously affirmed on direct appeal.
Sylvester filed a timely pro se Rule 37.1 petition alleging multiple instances of ineffective assistance of counsel; the trial court initially denied relief, then withdrew that order and held two evidentiary hearings.
At the second hearing trial counsel and Sylvester’s mother (Wanda Mata) testified; Sylvester added an allegation that counsel failed to obtain an inconclusive DNA report.
The trial court denied Sylvester’s Rule 37.1 petition; it specifically ruled on the claims pled in the petition but did not rule on the DNA-report allegation raised at the hearing.
On appeal Sylvester argued: (1) counsel was ineffective for not calling his mother to provide mitigating testimony regarding childhood sexual abuse and mental illness; (2) counsel failed to obtain an inconclusive DNA report; and (3) the trial court erred in summarily denying his pro se Rule 33 motion for a new trial.
The Supreme Court of Arkansas affirmed: it held counsel’s choice not to call the mother was trial strategy, the DNA-issue was not preserved for appeal, and the new‑trial claim was not cognizable in a Rule 37.1 proceeding because it could have been raised on direct appeal and was not a fundamental error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for not calling mother as mitigation witness	Sylvester: mother would testify to his childhood sexual abuse and mental illness and mitigate punishment	State: decision whether to call witness was counsel’s strategic choice; mother’s testimony could have harmed defendant	Held: No ineffective assistance — counsel’s decision was reasonable trial strategy
Whether counsel failed to obtain an inconclusive DNA report	Sylvester: counsel was ineffective for not obtaining/reporting DNA evidence that may have been favorable	State: trial court never ruled on this allegation; Sylvester failed to obtain a ruling so issue not preserved	Held: Issue not preserved for appellate review; waived
Whether trial court erred in summarily denying pro se Rule 33 motion for new trial	Sylvester: posttrial pro se motion raised twelve grounds entitling him to a new trial	State: the posttrial denial could have been reviewed on direct appeal and is not cognizable in Rule 37 absent a fundamental defect	Held: Not cognizable in Rule 37.1; no fundamental error shown

Strickland v. Washington, 466 U.S. 668 (two‑prong test for ineffective assistance of counsel)
Fisher v. State, 364 Ark. 216 (appellant must obtain trial-court ruling to preserve issue)
Beshears v. State, 340 Ark. 70 (preservation rule for appeals)
Jordan v. State, 356 Ark. 248 (arguments raised below but not on appeal are abandoned)
Echols v. State, 344 Ark. 513 (abandonment of issues not briefed on appeal)
Springs v. State, 387 S.W.3d 143 (trial strategy and tactics not grounds for ineffective assistance)
Noel v. State, 342 Ark. 35 (decision to call a witness is matter of trial strategy)
Missildine v. State, 314 Ark. 500 (motion for new trial alleging ineffective assistance may be reviewed on direct appeal)
Howard v. State, 367 Ark. 18 (Rule 37 ordinarily does not reach issues that could have been raised at trial or on direct appeal)
Rowbottom v. State, 341 Ark. 33 (examples of fundamental errors permitting collateral attack)
Collins v. State, 324 Ark. 322 (fundamental claims that render conviction void)
Jeffers v. State, 301 Ark. 590 (jurisdictional defect as fundamental error)