Conley v. State

he goodwill, that the which the fact feed on earning ca- his future

alleges represents of the busi- in the valuation

pacity, used Wilson, goodwill. See personal

ness was 851). Taylor, 386 N.W.2d

supra (quoting

However, point in his first explained not err in court did the circuit

appeal, case was this

finding goodwill that the Furthermore, at the

corporate goodwill. reconsideration, motion for

hearing on the alimony court reduced

the circuit stated

$4,000 specifically per month taking argu- Peter’s so after

that it did con- dipping” into regarding

ment “double such, we do not find

sideration. As abused its discretion

the circuit court circuit court.

affirm the order of the

Affirmed; appeal de- motion to dismiss

nied; opinion vacated. appeals’ court of CONLEY, Appellant R.

Vernell Arkansas, Appellee.

STATE

No. CR-13-21. Arkansas.

Supreme Court of

April Firm, Short,

James Law by: Lee D. appellant. McDaniel, Gen.,

Dustin Att’y by: Lau- Heil, Gen., ren Elizabeth Att’y Ass’t for appellee. GOODSON,

COURTNEY HUDSON Justice.

| Appellant Vernell R. Conley appeals order entered the Washington County denying Circuit Court petition his postconviction for pursuant relief to Ar- kansas Rule of Criminal Procedure 37.1. reversal, For he contends that the circuit in finding court erred that he did not receive ineffective assistance of counsel (1) when his trial attorney pro- failed to duce promised open- that was in (2) statement; ing neglected to make prop- (3) verdict; er motions for directed and failed to request a severance of the charges. We affirm on the point; first reverse and remand on the second issue with charges directions to dismiss the for possession of a controlled substance and possessiоn of drug paraphernalia; and we point. do not reach the third information, By felony amended prosecuting attorney Washington Coun- ty charged Conley delivery with of a con- (crack cocaine); trolled substance posses- | ¡.controlled (marijuana) sion of a substance deliver; possession ‍​​‌​​‌​‌‌‌​​​‌‌​​​‌​​​​‌‌​​‌​​‌‌​‌‌‌‌​​‌​​‌‌‌​​​‍with intent to of scales). drug paraphernalia (digital alleged information also that Conley was offender, with four nies. As an he received offender more than habitual an habitual for Conley sixty years delivery, of six felony convictions. stood sentences previous years for of a controlled sub- in the circuit court on trial before a stance, thirty years The State’s evidence August drug The circuit court di- paraphernalia. delivered 0.5813 disclosed that rected offenses run con- po- cocaine to undercover grams of crack officers, currently those be were associated with the and that convictions lice who consecutively delivery convic- drug Washing- in Madison and served task force testimony, tion. the convictions and According appealed ton Counties. Ap- the Arkansas Court of delivery evening occurred on sentences to 15, 2009, park Fayette- peals, at a which affirmed. September However, No- App. ville. the officers did not arrest 385 S.W.3d 875. tably, to reach appeals November 2009. On that the court refused until date, Conley’s sufficiency-of-the- officers also executed a search merits of home, Conley’s they arguments determining dis- evidencе after warrant at where marijuana spe- his motions grams plas- in a directed-verdict were covered 32.5 digital enough preserve tic Both cific the issues raised bag and a set scales. appeal. the scales located laundry top in the room on of a cabinet Thereafter, Conley timely peti- filed a dryer. above the washer and One officer pursuant tion for relief to postconviction marijuana was that also found in testified subsequently Rule 37.1. The circuit court home, of the there master bedroom but file an granted peti- him leave to amended testimony indicating where no further petition, Conley tion. In the amended as- was located in room. marijuana denied serted that he was effective assis- his Conley any family nor of mem- Neither attorney tance of because his counsel bers at home when officers ar- failed to a witness after counsel present warrant, rived although to execute the in jury opening had informed the state- police transportеd Conley to the later ment a to that he would witness during home the search. An officer also testify marijuana para- that the additional surveillance was testified that phernalia Conley’s home did not found following Conley’s of the home conducted belong Conley; attorney because his did further drug activity arrest and that no adequate motions directed make was observed. verdict; attorney and because his failed Conley delivery The move for severance of the jury guilty found of a digi- charge dеlivery of of the offenses of of a crack cocaine and from the scales, drug paraphernalia. tal After a hearing, controlled substance.1 Conley petition. of of the circuit denied the In acquitted court 18, 2012, September with intent to deliver and in- its order dated |4court trial guilty stead found him lesser-includ- found that counsel’s decision , possession marijuana. proposed ed of of At not to was a offense call witness trial, strategy compli- of matter that was in sentencing phase thе State of trial had ance of the Arkansas provisions introduced evidence with the | .¡previously been convicted twelve felo- Rules of Professional Conduct. The cir- Therefore, allega- pursued appeal. 1. Although raised additional them on those issues Tomavacca v. tions of ineffective assistance counsel his are deemed abandoned. State, 224, petition petition, 408 S.W.3d 727. and amended he has not 2012 Ark. suffered presumption identifying also ruled that the acts and cuit court which, from trial counsel’s failure counsel prejudice no omissions .of when viewed or to perspective a severance of the offenses from counsel’s at seek the time trial, ver- motions for directed make sufficient could not have been the result timely appeal filed a notice dict. professional judgment. reasonable Hen State, from the circuit court’s order. ington 181, Ark. 403 S.W.3d 55. outset, At the we note that this post- not reverse the denial of

court does Second, petitioner must show conviction relief unless the circuit court’s performance the deficient prejudiced clearly Montgom are erroneous. findings defense, requires which a demonstra State, 462, 2011 Ark. S.W.3d ery v. tion that counsel’s errors were so serious when, finding clearly A is 189. erroneous petitioner as to deprive of a fair trial. it, support there is although evidence to State, Myers v. 2012 Ark. 400 S.W.3d evidence, reviewing the entire we are after requires petitioner 231. This show left with definite and firm conviction a that there is reasonable probability has been Sar that a mistake committed. decision been fact-finder’s would have State, 694. tin v. Ark. 400 S.W.3d different absent counsel’s errors. v.White making a determination on claim of a State, 2013 Ark. A S.W.3d 911. counsel, ineffective assistance of this court probability probability reasonable is a suf totality of the evidence. considers ficient to out undermine confidence in the Harrison, State v. come of trial. Golden S.W.3d 427 S.W.3d 11. Our standard of also re review petitioner both Unless makes quires that we assess the еffectiveness of showings, Strickland it cannot be said two-prong set counsel under standard the conviction resulted from a breakdown the by Supreme forth of the United Court process in the that the adversarial renders 466 Washington, ‍​​‌​​‌​‌‌‌​​​‌‌​​​‌​​​​‌‌​​‌​​‌‌​‌‌‌‌​​‌​​‌‌‌​​​‍States in Strickland v. State, Taylor result unreliable. v. 2013 668, 2052, 104 U.S. S.Ct. 80 L.Ed.2d 674 146, recog Ark. 427 S.W.3d 29. alsoWe (1984). State, 87, Springs v. 387 2012 Ark. nize no court that “there is reason for a asserting 143. In ineffective assis S.W.3d ... deciding an ineffective assistance claim Strickland, pe counsel tance of under components inquiry to address both of the cоun titioner first must demonstrate that insufficient if the makes an defendant performance sel’s was deficient. Williams State, 2011 showing on one.” Anderson v. State, 2011 228. v. Ark. 385 S.W.3d 3-4, 385 787 Ark. at S.W.3d a requires showing This that counsel made Strickland, 697, 104 (quoting 466 U.S. at errors so serious that counsel was not 2052). S.Ct. functioning as the “counsel” guaranteed point first Con appeal, the Sixth Amendment. As his on petitioner State, ley argues 427 S.W.3d that he was Adams v. denied effective indulge attorney in reviewing 63. The court must a assistance of counsel when his telling the strong presumption produce that conduct failed to a witness after counsel’s jury also range opening you’re falls within wide of reasonable in statement “that up to a witness professional gonna assistance. Scott v. listen of ours come |fimarijuana testify why 1. The defen was S.W.3d as Conley’s and the claiming drug parapher dant ineffective assistance of not Mr. nalia, He overcoming okay.” has the burden of that asserts that counsel’s counsel up that counsel not live promise to fulfill this constitutes conclude could failure in opening that diminished claims made statement. performance deficient Harris, eyes recognize that credibility supra. in the of the Courts also counsel’s promised evidence produce his defense on’ all failure to damaged and thus credibility the defense. undermines of charges. Zimmerman, Moorman, State supra; v. hearing, postconviction coun- At the trial (Tenn.Crim.App.1991). S.W.2d omitted witness as Con- sel identified the instance, Anderson, wife, explained supra, For ley’s Monica. Counsel estranged call a witness defendant stabbed his wife nu- he did not her as because that, finding if she to merous times after her with anoth- prosecutor advised hers, was he er had killed testify that the contraband man. He admitted that he felony argued his that he charge her with offenses wife but his defense would was guilty with intent to deliver and of lesser-included offenses to first-degree In drug paraphernalia. charge Coun- murder. statement, opening promised also stated that had counsel sel admitted guilty testify call witnesses early expеrt on that he was that coun- two who would as a regarding sel could tender Monica witness to the defendant’s mental state testimony. In his give perjured “walking the defendant uncon- hearing, Conley he a ... sciously psychological at confirmed that toward no exit strategy programmed and his counsel discussed the like robot on destruction.” Anderson, responsibility take at having testify Although Monica 858 F.2d the scales reports for the and that statement was based experts it against testify, counsel advised because she who were available to charged if so following day would be she testified. defense rested the without calling experts. concluding failure to evi promise had dam- irreparably counsel’s opening can promised dence statement case, aged the defense the First Circuit prejudicial be an unreasonable and deci thing reasoned that first “[t]he as sion denies a defendant effective ultimately disappointed jurors would be- Dunlap v. People, sistance counsel. lieve, expla- in the absence of other some (Colo.2007); also P.3d 1054 see Ouber nation, would be that the doctors were (1st Guarno, Cir.2002); 293 F.3d 19 Har unable, viz., to their unwilling, up to live (7th Reed, Cir.1990); F.2d 871 ris billing. they forget.” This would not Id. Butler, (1st Anderson v. 858 F.2d 16 Cir. The likened the the court failure to call Moorman, 1988); State v. 320 N.C. experts “speaking to a that weak- silence” (1987). S.E.2d 502 The 358 rationale for ened the “vitals of the defendant’s de- considering a produce failure to promised fense.” Id. at 18. performance evidence as that deficient is hand, jury when counsel the the other primes to hear a On the course from original different version of events what he of a trial can affect and alter an presents, may ultimately strategy one infer that and reason may defense lead to jurors reasonable would think the able not to who witness decisions call witnesses to which in opening opening counsel referred his mentioned in statement. Bowersox, (8th unwilling statement was or unable to deliv Williams v. 340 F.3d 667 Cir.2003). promised. er the he McAleese determination of 18whether (3rd Mazurkiewicz, v. Cir. counsel was ineffective on such depends [7F.3d 1993). words, is jury likely other to as the nature extent of the factors and statement, opening any phasized in promises only made was not the subsequent occupant for the of the residence and strategic justifications evidence, produce to the was not at home when the decision not officers arrived jury for the conduct the search. When explanation provided considered context, evidence, in trial counsel’s statement an prеs- produce failure to remark, isolated identify counsel did not supporting of other evidence entation witness, nor did counsel any disclose in theory, generally, impact promised detail the substance of the proposed testi- upon the defense at trial and upon mony. States, jury We also note that the found Edwards v. 767 A.2d jury. United Conley guilty of (D.C.2001). the lesser-included offense whether the Determining possession marijuana, of of which indicates promised failure to call a witness is ineffec- little, that cоunsel’s any, statement had if tive of counsel depends assistance on record, impact jury. on the On this we are circumstances facts and of each case. not convinced that the failure (1st McGill, United States F.3d the witness undermines Cir.1993). confidence in the Therefore, outcome of the trial. we affirm This court has on addressed issue point. on this one occasion. In Chenowith Conley next asserts that his trial counsel (2000) (per 19 S.W.3d 612 cu- provided ineffective assistance based on riam), opening there was no record of counsel’s failure make motions for di- made, a hearing post- statements but at rected verdict challenge sufficient to relief, conviction Chenowith testified that sufficiency of the charges evidence on the attorney his trial had told of a controlled substance opening statement that he call three would with intent to deliver witnesses to establish an alibi defense drug paraphernalia. Noting the court charges kidnapping rape. Cheno- appeals’ holding that the directed-verdict with’s trial counsel could not recall what he insufficient, motions made counsel were statement, opening had said his and he he per- contends counsel’s deficient that the strategy testified defense that he formance in prejudice resulted because the pursued was one had of consent. Counsel State to produce failed substantial evi- that he an said did offer alibi defense possessed dence that he or thought because he it would be inconsis- digital sсales. asserts that this tent with the defense that the encounters is a case constructive involv- had been consensual. We found that there ing joint occupancy of a home and that was no ineffective assistance of counsel on present any State failed to evidence ground pursue counsel’s failure to linking him to the contraband. the alibi defense was a reasonable defense strategy. Where it is asserted that counsel case,

In the present we cannot conclude was ineffective for the failure to make ‍​​‌​​‌​‌‌‌​​​‌‌​​​‌​​​​‌‌​​‌​​‌‌​‌‌‌‌​​‌​​‌‌‌​​​‍a any prejudice argument, petitioner suffered from motion or must trial in opening argument counsel’s remark state- show that the motion or would Conley’s ment. defense charges to the of have been meritorious because the failure possession marijuana argument with intent to de- to an that is make meritless is | liver possession drug paraphernalia and ineffective of counsel. inassistance |flpossession State, 242, was that he was not in of Mitchell v. 2012 Ark. 2012 WL case, therefore, Through those items. cross-examination 1950257. In the instant witnesses, appel- of the State’s trial counsel em- must demonstrate that the 242 45, State, evi- borne v. 278 Ark. 643 S.W.2d 251 have found that the would

late court (1982). to factors include at trial insufficient Those additional adduced dence (1) care, exercised and would have over- that the accused con a conviction support trol, contraband; for reason. or over the management convictions that turned his (2) State, 42, Ark. 394 S.W.3d 2012 and knew the matter Strain v. that the aсcused court Morgan the circuit determined v. possessed 294. Because was contraband. State, 257, resulted from the failure no prejudice Ark. 308 S.W.3d 147. This 2009 motions, the to the directed-verdict knowledge make control can be inferred and requires circumstances, decision us to re- appeal of that prox from the such as the was sufficient evidence accused, whether there view imity of the contraband to the the verdicts. support view, plain fact that and owner it is ship property wherе contraband court treats a motion for This found, State, 2010 Ark. Loggins is v. challenge a as a to the verdict directed 372 S.W.3d sufficiency of the evidence. Green v. State, 497, 430 729. In 2013 Ark. S.W.3d case, testimony there was In this issue, we all of addressing this consider any family nor of his neither evidence, including may that which members when the were at home officers inadmissible, in light most have been Therefore, arrived conduct the search. State, State. Fondren v. favorable to the that Conley it is to conclude reasonable (2006). 498, 221 333 The 364 Ark. S.W.3d was not of the occupant the sole home. determining sufficiency of the test for State, Ark. See Osborne v. 643 sup the verdict is evidence is whether (1982) it (stating S.W.2d 251 that was rea ported v. by substantial evidence. Wells sonable to assume defendant State, 389, 430 Sub S.W.3d 65. wife, although shared home with his is evidence that is force stantial evidence testimony there was no direct the wife compel way ful a one enough to conclusion there). lived in this The record case also suspicion conjec or beyond the othеr or scales, digital shows that which are State, v. Ark. ture. Stevenson fiat, marijuana bag top 426 S.W.3d 416. laundry top of a in the room. The cabinet cases, To it neces cabinet was recessed. further drug is not sight, obscure from sary prove for the State to that an accused the contraband contraband, marijuana and the scales were situated physically posses held the proved by object consisting can be con behind of an sion of contraband decorative axiom possession, whiсh is the control made of wooden letters. The evi structive or dence that the right to control the contraband. Tubbs thus discloses contraband (2007). State, Ark. was hidden from view. Based on S.W.3d this evi dence, other possession implied can be unless there are factors link Constructive ing place when the contraband is found in a scales exclusively and the the evidence immediately marijuana, accessible to is not subject Conley’s support to his control. sufficient to convictions defendant hoggins рossessing those items. State However, joint of maintains is connected occupancy S.W.3d 785. premises marijuana alone will be sufficient because was also contraband Innot However, joint establish or found bedroom. [^master are additional factors from the did not disclose where the unless there in that possession. which the can infer had been found room. Os marijuana Other than the fact that Conley’s was final argument is that trial there, counsel there was deficient for linking found is no evidence nоt moving to [^possession sever the from possession marijuana. of that offenses delivery charge. This Thus, solely issue is marijuana di- discovery of rected to the possession offenses. Be- Conley’s pos- bedroom does not establish cause we have already found per- counsel’s of the laundry session contraband formance deficient with regard to those room. The State also relies the testi- convictions, and because those charges are that, arrested, mony once had been dismissed, to be we need not address this drug activity no further was observed at claim of ineffective assistance of counsel.2 However, the home. regard we do not State, Rackley 39; See v. 2014 Ark. Wicoff this evidence as establishing a connection State, 97, 321 Ark. 900 S.W.2d 187 possession between and the of the (1995); State, Sheridan v. 331 Ark. marijuana and the scales that were hidden (1998). S.W.2d 29 laundry in the Consequently, room. we part; Affirmed in reversed and remand- conclude that the evidence is not sufficient part ed in with directions ‍​​‌​​‌​‌‌‌​​​‌‌​​​‌​​​​‌‌​​‌​​‌‌​‌‌‌‌​​‌​​‌‌‌​​​‍to dismiss the support Conley’s posses- convictions for charges of possession of a controlled sub- sion of a controlled posses- substance and stance and possession drug parapherna- turn, drug paraphernalia. sion of we lia. hold that performance trial counsel’s prejudicial,

deficient and because had trial HART, J., concurs. counsel made a motion proper for directed verdict, HART, Justice, JOSEPHINE LINKER sufficiency-of-the-evidence ar- concurring. gument raised on аppeal would have been Accordingly,

successful. we reverse and The majority properly reverses and re- remand with directions to dismiss the mands with directions to dismiss the charges possession of a controlled sub- charges of possession of a controlled sub- drug stance and parapherna- stance and of drug parapherna- lia. See State v. Thompson, 343 Ark. lia. majority Because the dismisses these (2000) 34 S.W.3d 33 (recognizing that the charges, it did not need to also address as Jeopardy Double prohibits charges Clause retrial to these the merits of Vernell R. Conley’s argument after a conviction that his has been reversed be- counsel was evidence). presenting ineffective for not a witness insufficiency cause of when, also, State, during opening argument, trial e.g., See Walker 288 Ark. “you’re counsel stated that (1986) gonna also lis- 701 S.W.2d 372 (reversing denial of ten to a witness of up ours come collateral relief dismissing the charges testify why as to was not when counsel deemed failing ineffective for Mr. Conley’s drug paraphernalia.” and the to advance a meritorious motion to dismiss trial; speedy based on the lack of a Hall v. If it necessary to address the issue State, (1984) 281 Ark. 663 S.W.2d 926 as it relates to the possession charges, I (same); Clark v. 621 would conclude that trial counsel was inef (1981) (same)). S.W.2d 857 fective. Trial counsel’s failure to Conversely, necessary delivery it was charge, this court trial on the new as well as appeal to address the though first issue on because offenses. Even we re- point jected Conley’s argument asserted under that prеju- trial that he was promise damaged counsel’s broken promise, so trial diced the broken the issue is one credibility required counsel’s that he was entitled to a that we are to consider. was insuf- holding today that the evidence promised to counsel evidence convic- the jury support the is a ficient to to argument during opening |15have instructed the support to Because we | tions. failure damaging ^sufficient convictions, McA court to dismiss these of counsel. circuit ineffectiveness clаim of (3d 159; however, to address the Mazurkiewicz, there is no need 1 F.3d leese v. Reed, Cir.1993) F.2d merits of this issue. Harris v. (citing (7th Cir.1990), trial counsel where Furthermore, dismissing pos- the after he claimed in who failed to call witnesses not charges, we need address session the de support would argument opening as it relates to the argument merits of this shooting, of a version fense’s concludes, as an delivery charge. Butler, 858 F.2d 17-19 Anderson afterthought explanation,' and without (1st Cir.1988), counsel failed to where trial likely the error ... also “magnitude tеstimo expert-medical present promised delivery on the over as evidence spilled cogni had acted without ny defendant count,” “credibility ‍​​‌​​‌​‌‌‌​​​‌‌​​​‌​​​​‌‌​​‌​​‌‌​‌‌‌‌​​‌​​‌‌‌​​​‍damage for, in a of, his actions feeling zance or delivery the verdict on impacted promises trial counsel stabbing). When entirely The burden is on charge as well.” version it will hear a different jury that affirma- provide claimant to facts ultimately what counsel of the events from preju- or her claims of tively support his that reasonable may infer presents, one dice; conclusory statements nor neither witness to think that jurors would factual substantiation allegations without argu in opening referred which counsel the presumption are sufficient to overcome unwilling or unable deliver ment was effective, and such state- that counsel was McAleese, 1 testimony. F.3d the promised will not warrant allegations ments and at 166-67. See, e.g., relief. granting postconviction to the remark referred Trial counsel’s at Abernathy v. Trial counsel testified charges. curiam). Thus, Con- (per S.W.3d testimony of present not that he did conclusory allegations do not merit ley’s it have been Conley’s wife because would relief. testimony, as had admit-

perjured Nevertheless, dismissing pos- after early representa- him in his guilt ted his required if were still charges, session we that coun- Conley. Conley testified tion of argument merits of this to address the taking the against sel advised his wife had not delivery charge, Conley could have been stand because she would testimony The on prejudice. demonstrate he Trial counsel confirmed that charged. delivery charge was distinct from prosecutor. advised had been so possession charges, prior Trial counsel had determined speak trial counsel’s remark did testimony. offer the trial that he would not delivery charge on the presented evidence Thus, it to promised he not have should only to the efforts to but rather referred was left to conclude jury, jury as the possession charges. rebut the case, that, constructive-possession in this why contra- explain no witness could by Conley and was possessed

band was not by someone else. possessed

instead ig- be

prejudice apparent is and cannot

nored; convicted this court’s

possession charges despite

Case Details

Case Name: Conley v. State

Court Name: Supreme Court of Arkansas

Date Published: Apr 17, 2014

Citation: 433 S.W.3d 234

Docket Number: CR-13-21

Court Abbreviation: Ark.