KENNETH RAY MARSHALL v. STATE OF ARKANSAS
No. CR-19-232
Supreme Court of Arkansas
Opinion Delivered February 20, 2020
2020 Ark. 66
JOHN DAN KEMP, Chief Justice
PRO SE APPEAL FROM THE COLUMBIA COUNTY CIRCUIT COURT [NO. 14CR-14-2], HONORABLE HAMILTON H. SINGLETON, JUDGE. AFFIRMED.
Appellant Kenneth Ray Marshall appeals from the denial of his pro se petition for postconviction relief filed pursuant to
We will not reverse the trial court‘s findings granting or denying postconviction relief absent clear error. State v. Herred, 332 Ark. 241, 964 S.W.2d 391 (1998). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the totality of the evidence, is left with the definite and firm conviction that a mistake has been committed. Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918. Having reviewed the evidence and the findings of the trial court, we find no showing that the trial court clearly erred when it denied relief. We therefore affirm. In June 2015, a Columbia County Circuit Court jury convicted Marshall of aggravated residential burglary and sentenced him as a habitual offender to a term of life imprisonment plus 360 months. We affirmed. Marshall v. State, 2017 Ark. 347, 532 S.W.3d 563. Marshall subsequently filed a timely
The benchmark for judging any claim of ineffectiveness is “whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Thompson v. State, 2019 Ark. 312, at 2, 586 S.W.3d 615, 620 (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)). The standard governing claims of ineffective assistance of counsel is the two-prong test established in Strickland. To prevail under Strickland, Marshall must show both that counsel‘s performance was constitutionally deficient and that he was prejudiced as a result. Id.
To establish deficient performance, Marshall must show that counsel‘s representation fell below an objective standard of reasonableness. Id. However, in reviewing counsel‘s performance, a court must indulge in a strong presumption that counsel‘s conduct fell within the wide range of reasonable professional assistance. Id. This presumption may be overcome only by showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Id.
With respect to prejudice, Marshall must show a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding. Id. Rather, the likelihood of a different outcome must be “substantial, not just conceivable.” Id. at 3, 586 S.W.3d at 620 (quoting Harrington v. Richter, 562 U.S. 86, 112 (2011)). Unless both prongs are satisfied, it cannot be said that his conviction resulted from a breakdown in the adversarial process that rendered the result unreliable. Id. Accordingly, there is no reason for a court to address both components of the inquiry if the defendant makes an insufficient showing on one. Id.
In his first point on appeal, Marshall contends that the trial court did not hold a hearing and failed to make sufficient findings of fact to sustain its conclusions. The trial court concluded that Marshall had failed to demonstrate that counsel was deficient or that as a result of the alleged deficiencies, the outcome of the proceeding would have been different.1 In
In his petition and in his arguments on appeal, Marshall contends that he was arrested on November 26, 2013, and was tried on June 17, 2015, which is 568 days between his arrest and his trial. According to Marshall, his attorney erroneously requested continuances without good cause or legal justification. Marshall further contends that the trial court erred by granting his counsel‘s requests.
Under
The record demonstrates that there was no speedy-trial violation because Marshall was brought to trial within the twelve months after several excludable time periods attributable to the defense are subtracted from the 568-day period. These excludable periods are specifically reflected in the trial court‘s docket entries: on February 6, 2014, defense counsel moved for a 133-day continuance to allow Marshall to participate in a “temporary violators program” within the Arkansas Department of Correction;2 on October 2, 2014, another continuance was requested because the State offered a plea deal that included a proposed sentence of twenty years’ imprisonment, and 63 days later on December 4, 2014, Marshall appeared in court and rejected the offer; following the plea rejection, another 67 days were excluded beginning on February 13, 2015, with a “fitness to proceed” order and ending on April 15, 2015, the date the results were filed.3 Because these periods of delay were at the request of the defendant and included a period of time for the purpose of a competency evaluation, they are excludable. These excludable periods total 263 days, which, when subtracted from the 568 days, demonstrates that Marshall was brought to trial within 305 days from the date of his arrest. Therefore, Marshall has not shown that counsel failed to file a meritorious motion to dismiss based on a speedy-trial violation. Counsel is not ineffective unless a defendant is tried in violation of a speedy-trial right and counsel
Marshall does not argue that counsel failed to raise a speedy-trial issue; rather, Marshall alleges that his attorney was ineffective by requesting the delays without a legal basis and contends that the trial court erred by granting the defense‘s requests. Allegations of trial court error are assertions that must be raised at trial and on direct appeal and are not cognizable in
Finally, even assuming that counsel‘s requests delayed Marshall‘s trial without a legal basis, Marshall fails to demonstrate that he was prejudiced as a result of counsel‘s alleged errors. As stated above, Marshall must demonstrate a substantial likelihood that counsel‘s errors changed the outcome of the proceedings. Thompson, 2019 Ark. 312, 586 S.W.3d 615. Here, Marshall fails to allege any facts demonstrating that the delay in his trial changed its outcome.
Affirmed.
HART, J., dissents.
JOSEPHINE LINKER HART, Justice, dissenting.
I dissent. We must remand this matter to the circuit court for additional findings or a hearing on Marshall‘s
Here, the circuit court did not hold a hearing on Marshall‘s petition, and its order did not contain specific findings regarding the allegations in Marshall‘s petition about his counsel‘s performance. Accordingly, I would remand for additional findings or a hearing on Marshall‘s petition.
I dissent.
Kenneth R. Marshall, pro se appellant.
Leslie Rutledge, Att‘y Gen., by: Chris R. Warthen, Ass‘t Att‘y Gen., for appellee.