RODNEY RAYBURN v. STATE OF ARKANSAS
No. CR-20-176
SUPREME COURT OF ARKANSAS
April 29, 2021
2021 Ark. 98
PRO SE APPEAL FROM THE CLEBURNE COUNTY CIRCUIT COURT [NO. 12CR-17-63]
HONORABLE TIM WEAVER, JUDGE
AFFIRMED.
Rоdney Rayburn is serving a life sentence for raping his young daughter. He appeals the denial of petition for postconviction relief under
I.
On July 9, 2015, Rayburn raped his eleven-year-old daughter at a Cleburne County campsite. Four days later, Arkansаs State Police received a call from the child abuse hotline alleging that Rayburn had abused his daughter on numerous occasions. The child was interviewed by an Arkansas State Police investigator the following day. She described the assault аt the campsite as well as other instances of sexual abuse committed by Rayburn while in Arkansas and Jefferson Counties. Arkansas State Police notified prosecutors in Arkansas and Jefferson Counties of the investigation but failed to inform Cleburne Cоunty officials. In August 2015, Rayburn was arrested in Arkansas County. He was convicted of one count of rape and one count of criminal attempt to commit rape for crimes committed against his daughter within that jurisdiction. He was sentenced to a cumulative term of 480 months. The Arkansas Court of Appeals affirmed. See Rayburn v. State, 2018 Ark. App. 84, 542 S.W.3d 882.
The Cleburne County Sheriff‘s Department learned about the campsite rape in June 2016 after a status inquiry by the victim‘s grandmother. The county investigator spoke with Arkansas State Poliсe, met with Rayburn‘s daughter, and visited the crime scene with the child. After taking a month and a half vacation, the investigator presented the file to the Cleburne
This appeal arises from Rayburn‘s timely pro se petition for postconviction relief under
In a five-page order denying relief, the circuit court found that trial counsel was nоt ineffective and any alleged deficiencies in counsel‘s representation would not have changed the outcome of the trial. It also concluded that Rayburn was aware of the nature of the charges pending against him. The court determined that he was properly charged by felony information and that the deputy prosecuting attorney had authority to conduct the prosecution on behalf of the State. Finally, the circuit court ruled that Rayburn was not entitled to a hearing as the petition and records conclusively showed he was not entitled to relief. This appeal followed.
II.
On appeal, Rayburn broadly contends that the circuit court erroneously found that counsel was not ineffeсtive. He next argues entitlement to appointed counsel in
A trial court‘s denial of a
A.
Rayburn first asserts ineffective assistance of trial counsel. Ineffective assistance of counsel claims are reviewed under the two-prоng analysis set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail under Strickland, a petitioner must show that (1) counsel‘s performance was deficient and (2) the deficient performance prejudiced his defense. See Williams v. State, 2019 Ark. 289, at 3, 586 S.W.3d 148, 152–53. Unless the petitioner makes both showings, relief is not warranted. Id. A court need nоt address both components of the inquiry if the petitioner makes an insufficient showing on one. Id.
Counsel is presumed effective, and allegations without factual substantiation are insufficient to overcome that presumption. See Henington v. State, 2012 Ark. 181, 403 S.W.3d 55. Rayburn has the burden of overcoming the presumption by identifying specific acts and omissions that, when viewed from counsel‘s perspective at
Rayburn argues that counsel failed to present any mitigating evidence at trial rеgarding the State‘s allegedly deceitful tactics in delaying the filing of his charges until he had been charged in another county. He further claims that counsel failed to inform him of the exact nature and cause of the accusation against him, failed to conduct an adequate pretrial investigation, and failed to timely file pretrial motions to quash and dismiss the written information.
As an initial matter, Rayburn offers nothing more than cursory assertions regarding counsel‘s deficient performance and unreasonable strategic decisions. He broadly claims that he was denied a fair trial and impartial jury because counsel‘s errors were so serious. Conclusory statements that counsel was ineffective cannot be the basis fоr postconviction relief. See Williams, 2019 Ark. 289, 586 S.W.3d 148. Rayburn‘s conclusory claims regarding deficient performance in these generalized terms do not delineate the basis on which trial counsel could have been more proficient and made diffеrent strategic decisions. E.g., Dennis v. State, 2020 Ark. 28, 592 S.W.3d 646.
Moreover, a pretrial motion to dismiss for a speedy-trial violation and a motion to dismiss for undue advantage were filed below and were reviewed on direct appeal. At that time, Rayburn alleged that nоt only had his right to speedy trial been violated but that there was an “undue advantage due to prosecutorial delay in filing in Cleburne County charges.” Rayburn, 2019 Ark. 254, at 5, 583 S.W.3d at 388. As this court determined, there was no unnecessary delay by the prosecutor, and Rayburn did not suffer any рrejudice “because [he] can only speculate about whether he would have received concurrent sentences if the State had filed rape charges simultaneously in all three counties.” Id.
Rayburn contends that trial counsel did not inform him of the nature and cause of the charge against him. He claimed counsel fraudulently failed to inform him that the informatiоn was signed by a deputy prosecutor rather than the duly elected prosecutor. It is well settled that a deputy prosecutor, both at the time Rayburn was charged and currently, is authorized by statute to sign a felony information on behalf of the prosecuting attorney.
In the same vein, Rayburn argues that trial counsel failed to conduct an adequate pretrial investigation. Had counsel done so, he claims counsel would have moved to dismiss and quash the felony information. Rayburn contends he should nоt be made to answer the charge of rape
B.
Rayburn next argues that he was entitled to effective assistance of “direct appellate review counsel.” He does not, however, contend that he was denied effective assistance of counsel on direct review. Indeed, Rayburn was represented by appointed counsel on direct appeal. His argument is instead centered on an alleged right to counsel during
Below, Rayburn claimed he was “fraudulently induced into the Post Conviction Appellаte processes, in that he does not have a meaningful opportunity” to adequately prepare an ineffective assistance claim absent appointed counsel “on direct appeal.” The circuit court did not rule on this argument. It is an appellant‘s obligation to obtain a ruling to preserve an issue for appellate review. See Reams v. State, 2018 Ark. 324, 560 S.W.3d 441. Because Rayburn failed to obtain a ruling from the circuit court on this issue, it is not preserved for review on aрpeal.
Moreover, it appears Rayburn has changed the nature and scope of his argument on appeal. Rayburn contends he was deprived of
C.
As his final point, Rayburn contends that the circuit court‘s five-page order denying postcоnviction relief was inadequate under
When a
The circuit court‘s order included the requisite findings and is sufficient for review. In сoncluding that Rayburn‘s counsel was not ineffective, the circuit court pointed to multiple motions filed by counsel and discussed counsel‘s representation throughout the case. The order also outlined the applicable law regаrding Rayburn‘s claims and concluded that Rayburn failed to demonstrate either Strickland prong. Moreover, the petition and record conclusively show that Rayburn is not entitled to relief and thus an evidentiary hearing was not warranted.
Affirmed.
Rodney W. Rayburn, pro se appellant.
Leslie Rutledge, Att‘y Gen., by: Karen Virginia Wallace, Ass‘t Att‘y Gen., for appellee.