Williams v. State

Cite as 2015 Ark. 466

SUPREME COURT OF ARKANSAS
No. CR-15-192

MATTHEW WILLIAMS Opinion Delivered December 10, 2015
APPELLANT
PRO SE APPEAL FROM THE PIKE
V. COUNTY CIRCUIT COURT AND
MOTION FOR RULE ON CLERK
[NO. 55CR-08-56]
STATE OF ARKANSAS
APPELLEE HONORABLE TOM COOPER, JUDGE

AFFIRMED; MOTION MOOT

PER CURIAM

In 2013, appellant Matthew Williams, who represented himself at trial, was found guilty

by a jury in the Pike County Circuit Court of forgery in the first degree in violation of Arkansas

Code Annotated section 5-37-201(b)(1) (Supp. 2011) for passing forged checks at two

convenience stores. He was sentenced to a term of 480 months’ imprisonment.1 The Arkansas

Court of Appeals affirmed the judgment and remanded to correct the sentencing order to reflect

that Williams was a habitual offender. Williams v. State, 2014 Ark. App. 454.

Williams subsequently filed in the trial court a timely pro se petition for postconviction

relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013). The trial court denied the

petition after a hearing, and Williams brings this appeal.

On appeal, Williams raises some, but not all, of the allegations that he raised in the trial

court as grounds to reverse the trial court’s order. The issues that were argued below, but not

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Williams’s appointed counsel sat with him at trial and provided advice as stand-by
counsel.
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raised in this appeal, are considered abandoned. Sims v. State, 2015 Ark. 363.

Williams raises three claims of ineffective assistance of counsel in this brief. The claims

pertain to his pretrial counsel and his appellate counsel.

We do not reverse the grant or denial of postconviction relief unless the trial court’s

findings are clearly erroneous. Lemaster v. State, 2015 Ark. 167, 459 S.W.3d 802. A finding is

clearly erroneous when, although there is evidence to support it, the appellate court, after

reviewing the entire evidence, is left with the definite and firm conviction that a mistake has

been committed. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883.

We assess the effectiveness of counsel under the two-prong standard set forth by the

Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984). Sartin v.

State, 2012 Ark. 155, 400 S.W.3d 694. Under this standard, the petitioner must first show that

counsel’s performance was deficient. Id. This requires a showing that counsel made errors so

serious that the petitioner was deprived of the counsel guaranteed to the petitioner by the Sixth

Amendment. Id. Second, the deficient performance must have resulted in prejudice so

pronounced as to have deprived the petitioner of a fair trial, the outcome of which cannot be

relied on as just. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). Both showings are

necessary before it can be said that the conviction resulted from a breakdown in the adversarial

process that renders the result unreliable. Lemaster, 2015 Ark. 167, 459 S.W.3d 802.

Williams first argues that the trial court erred by not granting relief on his claim that his

pretrial counsel was ineffective for not contesting an erroneous jury instruction. He contends

counsel should have objected on the basis that the jury instruction defining the offense of

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forgery did not mirror the exact language in the forgery statute in that the instruction stated that

the check was a written instrument that was issued or “appears to be issued” by the government

or a government entity, but the statute does not containe the words “appears to be issued.”

While Williams is correct that the forgery statute, Arkansas Code Annotated section 5-37-

201(b)(1), does not contain the words in question, we cannot say that the trial court erred in

denying postconviction relief on the issue under the Strickland standard. First, counsel testified

at the Rule 37.1 hearing that she attempted to review the jury instructions with Williams, but he

informed her that he could read and did not need her help. At trial, when Williams was

representing himself, he did not object when the jury instructions were read to the jury. The

right of self-representation carries the responsibility for one’s own mistakes, and a defendant

who elects to represent himself cannot thereafter complain that the quality of his self-

representation amounted to a denial of effective assistance of counsel. Gilbert v. State, 282 Ark.

504, 506, 669 S.W.2d 454, 456 (1984).

Moreover, even if pretrial counsel failed to point out to Williams the difference in the

wording between the statute and the jury instruction or if counsel, acting as stand-by counsel,

could have suggested that Williams object to the jury instruction, Williams did not show that the

difference in the wording was sufficient to change the outcome of the trial. Without a showing

of a reasonable probability that the fact-finder’s decision would have been different absent an

error by counsel, Williams did not establish that he was prejudiced by any error by his pretrial

counsel. See Sims, 2015 Ark. 363.

In a related allegation, Williams argued at the Rule 37.1 hearing that the evidence was

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insufficient to show that the checks, which were City of Nashville, Arkansas, checks, were

government-issued instruments. He contended that, under Rule 37.1, he was entitled to raise

the question of whether the State established that forging the checks was an offense within the

scope of the statute. The trial court correctly declined to consider the claim, as it was an

allegation that the evidence was not sufficient to sustain the judgment. This court has

consistently held that attacks on the sufficiency of the evidence are direct attacks on the

judgment that must be made at trial and on the record on direct appeal. Cotton v. State, 293 Ark.

338, 339, 738 S.W.2d 90, 90 (1987). The Rule does not provide an opportunity to add evidence

to the record or to otherwise refute evidence adduced at trial. See Davis v. State, 345 Ark. 161,

44 S.W.3d 726 (2001).

Williams next contends that the trial court erred with respect to his claim that pretrial

counsel should have filed a motion to suppress the admission of copies of the forged checks.

He further argues that posttrial counsel was ineffective because counsel did not raise the issue

of the admissibility of the checks on appeal and failed to argue that there was reversible error

at trial because the State did not introduce the original checks into evidence.

As to pretrial counsel’s failure to object to the admission of the checks into evidence,

Williams represented himself when the checks were admitted into evidence, and he did, in fact,

object on the basis that the checks were copies rather than original documents. As the objection

was made, Williams did not establish that pretrial counsel was remiss.

With respect to whether appellate counsel was ineffective for failing to raise the issue of

the admissibility of the checks on appeal and failing to argue that the checks introduced into

evidence were copies of the original checks, Williams did not meet his burden of showing that
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counsel failed to raise a meritorious issue on appeal. Walton v. State, 2013 Ark. 254 (per curiam).

A convicted defendant has the right to effective assistance of counsel on appeal in accordance

with the Sixth Amendment. Watson v. State, 2014 Ark. 203, 444 S.W.3d 835. The petitioner

claiming that appellate counsel was ineffective bears the burden of making a clear showing that

counsel failed to raise some issue on appeal that would have resulted in reversal of the judgment.

State v. Rainer, 2014 Ark. 306, at 13, 440 S.W.3d 315, 323. Williams presented no argument to

demonstrate that the issue of either the admissibility of the checks or the introduction of copies

of the checks into evidence was an issue on which he would have prevailed on appeal.

Testimony at trial established that, pursuant to bank policy, the original checks were

destroyed after ninety days and that certified copies of the forged checks were returned to the

convenience stores and given to law-enforcement investigators. Under Arkansas Rule of

Evidence 1003 (2013), a duplicate is held to be admissible to the same extent as the original

unless a genuine question is raised to authenticity of the duplicate or where it would be otherwise

unfair to admit the duplicate. Williams did not show that there was any basis on which the trial

court erred in holding that the duplicate checks were admissible or any basis on which appellate

counsel could have raised a meritorious argument on appeal concerning the admissibility of the

duplicate checks. Again, the petitioner who claims that appellate counsel was ineffective bears

the burden of making a clear showing that counsel failed to raise some meritorious issue on

appeal. Rainer, 2014 Ark. 306, at 13, 440 S.W.3d 315, 323. An attorney is not ineffective merely

because he did not raise every argument on appeal, regardless of merit, urged by his client.

Watson, 2014 Ark. 203, 444 S.W.2d 835.

Williams’s next point for reversal of the order concerns his assertion that pretrial counsel
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did not contact witnesses for the defense. He claims there were multiple witnesses, but he

specifically names only Chris Turner. Williams alleges that Turner’s testimony would have been

vital to the defense because Turner was shown in video footage with Williams passing a forged

check, making him an “unindicted co-conspirator.”

A decision to call a witness is ordinarily tactical, based on the best judgment of counsel

and cannot alone support an ineffective-assistance-of-counsel claim. Rasul v. State, 2015 Ark.

118, 458 S.W.3d 722. A petitioner claiming ineffective assistance of counsel for failure of

counsel to call a witness is required to state the substance of the omitted witness’s testimony and

demonstrate that the omitted testimony resulted in actual prejudice to his defense. Feuget v. State,

2015 Ark. 43, at 5, 454 S.W.3d 734, 739. To demonstrate prejudice, the petitioner must establish

that there is a reasonable probability that, had counsel performed further investigation and

presented the witness, the outcome of the trial would have been different. Thomas v. State, 2014

Ark. 123, at 9, 431 S.W.3d 923, 929. The burden is on the petitioner to establish the

admissibility of the witness’s testimony. Johnston v. State, 2015 Ark. 162, at 5–6, 459 S.W.3d 782,

786 (per curiam). The fact that there was a witness, or witnesses, who could have offered

beneficial testimony is not, in itself, proof of counsel’s ineffectiveness. Rasul, 2015 Ark. 118, 458

S.W.3d 722.

Here, Williams did not demonstrate a reasonable probability that the outcome of the trial

could have been different had Turner testified. Williams did not set out in his Rule 37.1 petition

or at the hearing on the petition, and he does not explain in his brief in this appeal, what

testimony Turner would have offered had he been called as a witness. Two store clerks testified

that they were sure that Williams was the person who had passed the forged checks to them.
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Even if Turner were in the video with Williams, the onus was on Williams to state what Turner

would have said at trial that would have affected the outcome of the trial. As Williams did not

meet the threshold requirement of setting out how the defense was prejudiced by pretrial

counsel’s failure to secure the testimony of Turner or any other witness, he did not show that

counsel was remiss. See Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895 (To establish prejudice

for failure of counsel to secure the testimony of a particular witness, it is incumbent on the

petitioner to provide a summary of the testimony that would have been beneficial to the defense

under the Strickland standard.).

Finally, Williams has filed a pro se motion for rule on clerk, seeking to file a belated reply

brief. As there is clearly no merit to the appeal, we affirm the trial court’s denial of Rule 37.1

relief, rendering the motion moot.

Affirmed; motion moot.

Matthew Williams, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Ass’t Att’y Gen., for appellee.

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