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SUPREME COURT OF ARKANSAS
No. CR-15-530
ROBERT LEE SANDRELLI Opinion Delivered March 10, 2016
APPELLANT APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT
V. [NO. CR-2012-1189]
STATE OF ARKANSAS HONORABLE J. MICHAEL
FITZHUGH, JUDGE
APPELLEE
AFFIRMED IN PART; REVERSED
AND REMANDED IN PART.
RHONDA K. WOOD, Associate Justice
Robert Sandrelli was convicted of four counts of rape. After our court of appeals
affirmed the convictions, see Sandrelli v. State, 2015 Ark. App. 127, Sandrelli filed a Rule 37
petition alleging three instances of ineffective assistance of counsel. The circuit court denied
the petition without a hearing by a written order. Sandrelli has appealed and argues that he
was entitled to a hearing on his allegations. 1 We affirm in part and reverse and remand in
part.
This criminal case began when Robert Sandrelli’s son accused him of rape. A jury
trial was held in August 2013. The State presented evidence from the victim and law-
enforcement officials. Sandrelli testified in his own defense and denied all the allegations.
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We ordered rebriefing after we found a deficiency in the abstract. Sandrelli v. State,
2015 Ark. 450 (per curiam). This deficiency has been corrected.
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The defense also presented evidence from five character witnesses who attested to Sandrelli’s
character for truthfulness. The jury could not reach a unanimous verdict, so the court
declared a mistrial. The State refiled the charges, and second jury trial was held in September
2013. The State’s case was substantially similar to the one it presented in the first trial. But
in the second trial, the defense presented no witnesses. The jury was able to reach a verdict
and convicted Sandrelli of four counts of rape.
After the court of appeals issued its mandate, Sandrelli filed a Rule 37 petition
wherein he alleged ineffective assistance of counsel. The petition contained three primary
allegations of his attorney’s deficient performance during the second jury trial: (1) the
attorney had resigned as managing public defender and was under emotional and
professional stress; (2) the attorney failed to call any witnesses on Sandrelli’s behalf; and (3)
the attorney unilaterally decided that Sandrelli should not testify. The circuit court denied
the petition without a hearing. It ruled that the first allegation was conclusory and could not
form the basis for a claim of ineffective assistance. The court further ruled that the decisions
regarding which witnesses to call and whether Sandreilli would testify were matters of trial
strategy, which also forms no basis for postconviction relief.
This court does not reverse a denial of postconviction relief unless the circuit court's
findings are clearly erroneous. Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918. “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.” State v. Barrett, 371 Ark. 91, 95, 263 S.W.3d 542, 545 (2007).
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Rule 37.3 of the Arkansas Rules of Criminal Procedure provides that an evidentiary
hearing should be held in a postconviction proceeding unless the files and record of the case
conclusively show that the prisoner is entitled to no relief. Wooten v. State, 338 Ark. 691, 1
S.W.3d 8 (1999). If the files and the record show that the petitioner is not entitled to relief,
the circuit court is required to make written findings to that effect. Ark. R.Crim. P. 37.3(a).
Conclusory allegations that are unsupported by facts do not provide a basis for either an
evidentiary hearing or postconviction relief. Henington v. State, 2012 Ark. 181, 403 S.W.3d
55.
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). Under
this standard, the petitioner must first show that counsel’s performance was deficient. Feuget
v. State, 2015 Ark. 43, 454 S.W.3d 734. This requires a showing that counsel made errors
so serious that counsel deprived the petitioner 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 whose outcome
cannot be relied on as just. 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. Id.
We agree with the circuit court that the first allegation regarding defense counsel’s
stress level was conclusory; therefore, this claim cannot form the basis for postconviction
relief. Sandrelli never alleged how his counsel’s stress level led to specific instances of
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deficient conduct. Nor has he alleged how his counsel’s stress level could have altered the
outcome of his trial. The record conclusively shows that Sandrelli is entitled to no relief on
this basis, and the circuit court’s decision to dismiss this part of the petition without a hearing
was not clearly erroneous.
The same is not true for Sandrelli’s second and third claims for relief. The circuit
court held that defense counsel’s failure to call any witnesses, including Sandrelli, was not
deficient performance because the decision to call witnesses is a matter of trial strategy. For
support, the court noted Sandrelli’s presence during voir dire when his counsel announced
he did not anticipate calling any witnesses. Because of this, the court concluded that Sandrelli
and his counsel must have agreed, pre-trial, that no witnesses would be called. This finding
is clearly erroneous because there were no facts before the court to support it. Generally,
the decision to call a witness is a matter of trial strategy. See Stiggers v. State, 2014 Ark. 184,
433 S.W.3d 252. Still, such strategic decisions must be supported by reasonable professional
judgment. Id. Based on the record in this case, the court had no way of knowing whether
counsel’s decisions were based on his reasonable judgement without a hearing.
In addition, the record fails to conclusively show that counsel’s failure to call
additional witnesses resulted in no prejudice. The circuit court addressed this point by stating
that counsel’s failure to call character witnesses did not create a reasonable probability of a
different outcome. But this ruling contradicts the facts of this case, which are unusual
because a “control” case already exists. In Sandrelli’s first trial, the jury failed to reach a
verdict; in the second trial, the jury convicted. In the first trial, the defense offered a robust
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case, with five character witnesses and the defendant’s own testimony; but in the second
trial, the defense offered no case at all. Thus, Sandrelli has a colorable claim that he was
prejudiced because in the first trial there was, in fact, a different outcome.
Again, this appeal presents an unusual case because the first jury trial resulted in a
hung jury. Despite this outcome, Sandrelli’s counsel called no witnesses in the second trial.
This decision must be supported by reasonable professional judgment. The record and files
do not conclusively show that it was. Therefore, we reverse and remand for the circuit court
to hold a hearing to determine whether counsel’s failure to call witnesses was based on
reasonable judgment and, if not, whether this failure prejudiced Sandrelli.
Affirmed in part; reversed and remanded in part.
DANIELSON, J., concurs.
PAUL DANIELSON, Justice, concurring. I concur in the disposition of this case.
However, I would reverse and remand for an evidentiary hearing for the simple reason that
the petition and record do not conclusively show that Sandrelli is entitled to no relief on his
claim that his trial counsel did not consult him before deciding that he would not testify.
See Ark. R. Crim. P. 37.3; Beverage v. State, 2015 Ark. 112, 458 S.W.3d 243. It is well
settled that an accused has the right to choose whether to testify in his own behalf and that
counsel may only advise the accused in making this decision. See, e.g., Chenowith v. State,
341 Ark. 722, 19 S.W.3d 612 (2000) (per curiam). Without an evidentiary hearing, we
cannot conclusively determine whether counsel’s performance on this issue was deficient
and, if so, whether it prejudiced the defense.
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Barham Law Office, P.A., by: R. Kevin Barham, for appellant.
Leslie Rutledge, Att’y Gen., by: Kristen C. Green, Ass’t Att’y Gen., for appellee.
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