Watson v. StateWatson v. State
PRO SE PETITION FOR WRIT OF CERTIORARI AND MOTIONS TO AMEND PETITION, FOR TRANSCRIPT, FOR EXTENSION OF TIME TO LODGE RECORD, AND FOR USE OF TRIAL TRANSCRIPT [HOT SPRING COUNTY CIRCUIT COURT, CR 2007-278, HON. CHRIS E WILLIAMS, JUDGE]
APPEAL DISMISSED; PETITION FOR WRIT OF CERTIORARI AND MOTIONS MOOT.
PER CURIAM
Appellant Sherman Watson appealed the denial of his pro se petition under
The record first presented to this court in this appeal contained a single petition that was file marked well after the time allowed for filing a Rule 37.1 petition and, thus, raised a jurisdictional issue, in that the timely filing of a Rule 37.1 petition is jurisdictional. Watson, 2011 Ark. 202. The trial court has now returned an order finding that appellant’s petition was timely
Having determined that jurisdiction lies, we nevertheless dismiss the appeal based upon the record as amended. Appellant’s petition for writ of certiorari and his motions are rendered moot as a result.
An appeal from an order that denied a petition for a postconviction remedy will not be permitted to go forward where it is clear that the appellant could not prevail. Croft v. State, 2010 Ark. 83 (per curiam); Crain v. State, 2009 Ark. 512 (per curiam). Appellant did not present sufficient facts in his petition, or in the hearing on the petition,1 to support a claim for postconviction relief under the rule.
The supplemented record shows that appellant filed a proposed amendment to the petition that included additional claims. The record of the hearing on the Rule 37.1 petition indicates that the trial court considered claims raised in the amendment as well as those raised in the petition, and the court then denied the petition. This court does not reverse a denial of
The majority of appellant’s claims were assertions that the evidence against him was not sufficient, raised in various ways. Claims challenging the sufficiency of the evidence are a direct attack on the judgment and are not cognizable in Rule 37.1 petitions. Delamar v. State, 2011 Ark. 87 (per curiam). Assertions of trial error, even those of constitutional dimension, must be raised at trial and on appeal. Id. Appellant’s claim of actual innocence was a direct attack on the judgment and a challenge to the sufficiency of the evidence that is not cognizable in a Rule 37.1 proceeding. Travis v. State, 2010 Ark. 341 (per curiam). Prosecutorial misconduct, another claim raised by appellant multiple times, is not a claim cognizable in a Rule 37.1 petition. Id.
Appellant did raise a number of claims of ineffective assistance of counsel, which, in contrast to direct attacks on the judgment, are collateral challenges that may be cognizable in Rule 37.1 proceedings. Davenport v. State, 2011 Ark. 105 (per curiam). The trial court found that appellant failed to demonstrate prejudice from the alleged ineffective assistance.
In order to prevail on any claim of ineffective assistance of counsel, a petitioner is required to demonstrate prejudice in that the alleged error would have impacted the outcome of the trial. Wormley v. State, 2011 Ark. 107 (per curiam). For a claim of ineffective assistance based on failure to investigate, a petitioner must describe how a more searching pretrial investigation would have changed the results of his trial. Id. (citing McCraney v. State, 2010 Ark. 96, ___ S.W.3d ___ (per curiam)).
Appellant alleged that his attorney was ineffective for failing to conduct further
Appellant also alleged that counsel was ineffective for failing to file two motions, one to suppress evidence from a search of the car appellant had been in prior to his arrest and one to sever the prosecution of the two charges. Appellant failed to demonstrate that counsel could have pursued a successful motion as to either claim.
Appellant did not show that counsel could have demonstrated that the two theft charges were not part of a single scheme or plan, as the testimony by appellant’s codefendants at trial indicated. See
The burden is on an appellant to provide facts that affirmatively support his claims of prejudice. Smith v. State, 2010 Ark. 137, ___ S.W.3d ___ (per curiam). Conclusory statements cannot form the basis of postconviction relief. Id. Because he has the burden of proof, when a hearing is conducted on the merits of the claim, a petitioner asserting ineffective assistance must provide adequate evidence in support of those facts in order to establish his claim. Mitchem v. State, 2011 Ark. 148 (per curiam). Appellant failed to meet that burden; he did not establish prejudice from the alleged failures to move for severance or suppression.
Finally, appellant’s petition alleged that his counsel had a conflict of interest. Appellant asserted that the conflict stemmed from appellant’s attempt to have counsel relieved from representing him. The trial court did not provide a ruling on this issue, however. It is the obligation of an appellant to obtain a ruling from the trial court in order to preserve an issue for appellate review. Reed v. State, 2011 Ark. 115 (per curiam). Failure to obtain a ruling precludes our review of that argument on appeal. Id.
For those claims subject to our review, appellant did not carry his burden to demonstrate a meritorious claim for postconviction relief. He clearly cannot prevail on appeal.
Appeal dismissed; petition for writ of certiorari and motions moot.