Cowan v. StateCowan v. State
PER CURIAM
Aрpellant Michael Lee Cowan was convicted of two counts of sexual assault in the second degree and was sentenced as a habitual offender to 960 months’ imprisonment. The Arkansas Court of Appeals affirmed. Cowan v. State, 2010 Ark. App. 715. On December 3, 2010, appellant filed a petition for postconviction relief pursuant to
On appeal, appellant asserts four bases for postconviction relief: (1) trial counsel was ineffective for failing to object to prejudicial testimony; (2) appellant was incompetent to waivе his right to testify because he was delusional; (3) the circuit court erred in denying him his right to allocution; (4) trial counsel failed to allow appellant to testify on his own behalf. Because we find that appellant‘s fourth point may possibly have merit, we reverse and remand to the trial court to conduct a hearing and enter a new written order on that issue only.
This court does not reverse a denial of postconviction relief unless the circuit court‘s
With respect to the requirement that prejudice be established, a petitioner must show that there is a reasonable probability that the fact-finder‘s decision would have been different absent counsel‘s errors. Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). A reasonable probability is a probability sufficient to undermine confidence in thе outcome of the trial. Id. There is a strong presumption that trial counsel‘s conduct falls within the wide range of reasonable professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel that, when viewed from counsel‘s
Appellant first asserts that his trial counsel was ineffective for failing to object to certain testimony that he claims was prejudicial. We, however, are precluded from addressing this claim, as there was no ruling on this argument by the circuit cоurt in its order. Where the trial court provides written findings on at least one, but less than all, of the petitioner‘s claims, we have held that an appellant has an obligation to obtain a ruling on any omitted issues if they are to be cоnsidered on appeal. See Watkins, 2010 Ark. 156, 362 S.W.3d 910; Wofford v. State, 2009 Ark. 325 (per curiam); see generally Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006); Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000). If the order did not contain a ruling on an issue or issues, it was incumbent on appellant to file a motion asking the court to address the omitted issues. Russell v. Webb, 2011 Ark. 307 (per curiam); Watkins, 2010 Ark. 156, 362 S.W.3d 910. The requirement that an appellant obtаin a ruling on all issues he wishes to raise on appeal is procedural, and all appellants, including those proceeding without counsel, are responsible for following procedural rules in perfecting an aрpeal. See Raines v. State, 336 Ark. 49, 983 S.W.2d 424 (1999) (per curiam). Matters left unresolved are waived and may not be raised on appeal. See Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996).
As his second point on appeal, appellant argues that he was incompetent to wаive his right to testify because he was delusional. We do not consider this claim, however, because appellant raises it for the first time in this appeal. In his Rule 37.1 petition, appellant asserted that his trial counsel was inеffective for failing to raise his incompetence. It is well settled that an appellant
For his third argument, appellant asserts that the trial court erred in denying him the right of allocution. A review of the circuit court‘s order, however, reveals no ruling on this issue. As we have аlready observed, the failure to obtain a ruling on an issue at the trial court level precludes review on appeal. See Watkins, 2010 Ark. 156, 362 S.W.3d 910; Wofford, 2009 Ark. 325. Nor is such a claim cognizable in a Rule 37.1 petition; claims of trial error, even those of constitutional dimension, must be raised at trial and on appeal. Hale v. State, 2011 Ark. 478 (per curiam) (citing Hawthorne v. State, 2010 Ark. 343 (per curiam)).
Moreover, a review of appellant‘s trial record reveals that, after the circuit court announced appellant‘s sentence, the court referred to appellant‘s right of allocution and inquired of appellant whether there was anything he wished to say.
Appellant‘s final point on appeal is that trial counsel was ineffective for failing to allow him to testify on his own behalf. In its order denying relief, the circuit court found that “[t]he allegation that trial counsel was ineffective for failing to call [appellant] to testify is contrary to Arkansas law” and that “[t]he decision to testify is purely one of strategy and not reviewable under Rule 37.” The circuit court based this ruling on our holding in Robinson v. State, 295 Ark. 693, 750 S.W.2d 60 (1988) (per curiam). Robinson, however, is distinguishable from the instant situation, inasmuch as Robinson dealt with an allegation that trial counsel was ineffective for advising Robinson that he should not testify when the State would be able to use Robinson‘s prior convictions to impeach his credibility; in the instant case, appellant argues that trial cоunsel explicitly stated that appellant was not allowed to testify by virtue of his prior convictions. In the latter situation, we have recognized that such claims might support postconviction relief under Rule 37.1. See Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985).
Our holding in Robinson was based on our holding in Isom, in which we noted that a petitioner who claims ineffective assistance based on trial counsel‘s refusal to let petitioner testify must satisfy the prejudice prong of Strickland by “stat[ing] specifically what the content of his testimony would have been and demonstrat[ing] that his failure to testify resulted in actual prejudice to his defense.” Id. at 430, 682 S.W.2d at 758. Thus, while the circuit court‘s ruling was a correct statement of law as to cases where an appellant later disagrees with counsel‘s advice, it was not correct as to cases where an appellant argues that his attorney prevented him from
In his petition, appellant averred that trial counsel informed him that, “by law, [appellant] was not allowed to testify because of his prior convictions.” Furthermore, appellant claims that the only reason that he did not inform the trial court that he wished to testify was because trial counsel told him that he was not to address the court in any way unless he was responding to a direct question frоm the court. Finally, appellant stated in his petition that, had he been allowed to testify, his testimony would have included that he was incarcerated on the date that the sexual assault was alleged to have taken place, that one of the victims had previously told appellant that he “would pay” and would regret killing her cat, that documentary evidence confirmed that the victim still held a grudge regarding the dead cat, and that the victim had рreviously told appellant that she did not want him to be involved in a relationship with her mother.
In the instant case, the trial court did not enter written findings of fact and conclusions of law supporting its determination that appellant was entitled to no relief. Moreover, appellant‘s оriginal Rule 37.1 petition supported his claim of ineffective assistance of counsel for failure to allow appellant to testify with specific testimony that he would have given had he taken the stand. As such, we reverse thе circuit court‘s denial of postconviction relief with respect to this single issue, and we remand for an evidentiary hearing in which the circuit court should determine whether trial counsel prevented appellant from testifying and, if so, whether this prevention resulted in prejudice to appellant, and the circuit court should enter a new written order consistent with the requirements of
Affirmed in part; reversed and remanded in part.