Lead Opinion
This is an appeal from a trial court’s denial of a Rule 37 petition. Appellant, Frank
Williams, shot and killed Clyde Spence at his home in Lafayette County. Appellant was charged with breaking or entering, felon in possession of a firearm, theft of property, and caрital murder. Fie was sentenced to death by lethal injection on the capital-murder charge. We affirmed appellant’s conviction on his direct appeal in Williams v. State,
In appellant’s first point on appeal, he argues that the trial court’s order denying his petition for postconviction relief did not comply with the Rule 37.3(c) of the Arkansas Rules of Criminal Procedure. Specifically, appellant contends that the trial court’s July 23, 1999, order did not contain the requisite findings of facts and conclusions of law. Appellant argues that the trial court’s order contained incomplete or conclusory findings in violation of Rule 37. Finally, appellant contends that because the order is invalid we should reverse and remand this case.
The order that appellant challenges is the trial court’s July 23, 1999, order. In that order, the following findings were made:
On the basis of the pleadings and briefs filed in the case, thе record of the trial, and the evidence introduced at the hearing on this petition, the court hereby denies postconviction relief.
The petitioner, in his original motion for postconviction relief, alleged several factors for the court’s considerаtion. In his brief subsequent to the hearing, counsel does not choose to address these factors individually, but considers all points alleged in his original petition to constitute ineffective assistance of counsel.
In denying petitioner’s motion for postconviction relief, the court finds that to prevail as an instance of ineffective assistance of counsel, the petitioner must establish that trial counsel’s conduct was outside the range of reasonable professional assistance and that there is a reasonable рrobability that, but for counsel’s errors, the outcome' would have been different. Strickland v. Washington,466 U.S. 668 (1984). The petitioner failed to establish a reasonable probability that, but for counsel’s errors, the outcome would have been different. Therefore, the petition for Rule 37 relief must be denied.
We agree with appellant’s contention that the original order was conclusory and did not meet the requirements of Rule 37. However, on May 25, 2000, the State filed a motion in this court asking us to remand the case to allow the trial court to enter written findings of fact pursuant to Rule 37.5(i) of the Arkansas Rules of Criminal Procedure. That rule states:
If a hearing on the petition is held, the circuit court shall, within sixty (60) days of the conclusion of the hearing, make specific written findings of fact with respect to each factual issue raised by the рetition and specific written conclusions of law with respect to each legal issue raised by the petition. If no hearing on the petition is held, the circuit court shall, within one hundred twenty (120) days after the filing of the petition, make specific written findings of fact with respeсt to each factual issue raised by the petition and specific written conclusions of law with respect to each legal issue raised by the petition. The time within which the circuit court shall make specific written findings of fact and conclusions of law shall be extended by thirty (30) days if the circuit court requests or permits post-hearing briefs.
Id. (emphasis added).
On June 15, 2000, we granted the State’s motion and remanded this case back to the circuit court. On September 25, 2000, the trial court entered a supplemental order denying appellant’s petition. In that order, the trial court made specific factual findings and conclusions of law on each issue raised by appellant in his petition for postconviction relief. We have carefully considered those specific findings of fact and conclusions of law, and find no reversible error. We also note that appellant has not challenged those specific findings of fact and conclusions of law. We hold that the trial court’s supplemental order complies with our rules of criminal procedure, and contains no reversible error as to the first point on appeal. We further conclude that appellant’s allegation of error based upon the defective original order is now moot.
In appellant’s second point on appeal, he argues that the trial court should hаve granted his petition for postconviction relief because his attorney at trial was ineffective. Specifically, appellant argues that his trial attorney was ineffective because he failed to call various witnesses such as his mother or his sister to testify during the sentencing phase of the trial. Before addressing the merits of appellant’s argument, we note that appellant has failed to proffer the substance of either witnesses’ testimony at any stage of the postconviction proceeding. Thus, it is impossible for either the trial court or this court on review to determine whether appellant’s mother’s testimony or his sister’s testimony would have changed the outcome of the trial, thereby rendering trial counsel’s assistance ineffective. We have held that allegations of ineffective assistance without substantiation do not justify postconviction relief. Johnson v. State,
In аppellant’s final point on appeal, he argues that the Arkansas Death Penalty Statute is unconstitutional. He challenges its constitutionality on several grounds. Specifically, he argues that the statute: (1) has overlapping offenses; (2) limits the jury’s consideration of mitigating evidence during the sentencing phase of the trial; and (3) requires the imposition'' of the death penalty under certain circumstances.
Before addressing appellant’s contentions, we note that appellant was required to raise any constitutional claims in his direct appeal. We have held that even constitutional issues must be raised in the trial court and on direct appeal, rather than in Rule 37 proceedings. Sasser v. State,
In appellant’s first constitutional argument, he contends that felony capital murder and premeditated and deliberated murder are identical to and overlap with first-degree felony murder аnd first-degree murder. We have repeatedly rejected this contention. Davis, supra; Sanders v. State,
In Lee v. State,327 Ark. 692 ,942 S.W.2d 231 (1997), we stated simply that “[w]e have decided this issue adversely to Lee’s position on many оccasions, and adhere to these previous holdings.” Id. Similarly, in Nooner v. State,322 Ark. 87 ,907 S.W.2d 677 (1995), we stated that we have discounted this argument on numerous occasions. See Greene v. State,317 Ark. 350 ,878 S.W.2d 384 (1994). Similarly, on this occasion, we adhere to our previous decisions, and we reject this аrgument. Therefore, any inference that trial counsel was ineffective for failing to raise this point in the direct appeal is meritless.
Davis, supra. Because appellant’s argument in the case now before us is identical to that raised in Davis, supra, Lee, suprа, and Nooner, supra, and because the statutory language in question has not changed since our disposition of those cases, we once again reject the argument that the death-penalty statute is unconstitutional, and reject any inference that the fаilure to raise this issue on direct appeal constituted ineffective assistance of counsel.
Next, appellant argues that the sentencing instructions and the jury verdict forms did not inform the jury that each juror could consider mitigating factors at all times, in violation of Mills v. Maryland,
Finаlly, appellant contends that the sentencing scheme is unconstitutional because the word, “shall,” in Ark. Code Ann. § 5-4-603 requires the jury to impose the death penalty on certain findings. We have previously held that Ark. Code Ann. § 5-4-603 does not result in a mandatory death sentence. Davis, supra; see also; Williams v State,
Affirmed.
Concurrence Opinion
concurring. I agree with the majority except its final point is somewhat confusing. In that point, Williams argues the Dеath Penalty Statute is unconstitutional. The majority rejects Williams’s arguments regarding this constitutional issue, but in doing so, seems to rely in part on the case of Sasser v. State,
In death penalty cases and under Ark. R. Crim. P. 37.5, this court has required a heightened standard of review of capital cases because the State, under Act 925 of 1997 and Rule 37.5, is provided collateral relief so as “to eliminate the need for multiple federal habeas corpus proceedings in death cases.” Jackson v. State,
Previously, this court’s only exception to the rule regarding when an issue could be considered in Rule 37 proceedings when not raised at trial or on dirеct appeal was where that error is “structural” or so fundamental as to render the judgment of conviction void and subject to collateral attack. See id. at 383-384; Collins v. State,
Notes
The constitutional issue and arguments here are not structural in nature, but instead are merely subject to judicial review and would render Williams’s conviction void.