Flemons v. State

Cite as 2016 Ark. 460

SUPREME COURT OF ARKANSAS
No. CR-14-416

Opinion Delivered: December 15, 2016

AARON FLEMONS PRO SE APPEAL FROM THE
APPELLANT SEBASTIAN COUNTY CIRCUIT
V. COURT, FT. SMITH DISTRICT
[NOS. 66CR-11-491, 66CR-11-493;
STATE OF ARKANSAS 66CR-11-494; 66CR-11-977; 66CR-
APPELLEE 11-987]

HONORABLE STEPHEN TABOR,
JUDGE

AFFIRMED.

PER CURIAM

In 2012, a Sebastian County Circuit Court jury found appellant Aaron Flemons

guilty of three counts of delivery of cocaine and one count of delivery of a counterfeit

substance, and he received an aggregate sentence of 552 months’ imprisonment in the

Arkansas Department of Correction. The judgment reflected sentence enhancements for

Flemons’s habitual-offender status and, for the cocaine delivery charges, proximity to a

church or park. The Arkansas Court of Appeals affirmed the judgment. Flemons v. State,

2013 Ark. App. 239.

In separate proceedings later the same year, Flemons was also convicted of fleeing

apprehension and leaving the scene of a personal injury accident in Sebastian County Circuit

Court case number CR-11-987, and he received an aggregate sentence of 360 months’

imprisonment that was to run consecutively to the sentences imposed in the earlier
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conviction. The court of appeals also affirmed that judgment. Flemons v. State, 2013 Ark.

App. 280.

Flemons filed timely pro se petitions for postconviction relief under Arkansas Rule

of Criminal Procedure 37.1 (2015) as to both judgments, and he later filed amended

petitions in both matters. The trial court consolidated the proceedings, held a hearing on

the petitions, and entered a single order denying both petitions as amended. Flemons appeals

that order. We affirm.

On appeal, Flemons’s first three points challenge the trial court’s denial of his motions

for a continuance, for appointment of counsel, and for a copy of certain trial transcripts.

Flemons first asserts that the trial court erred in denying his two requests for a continuance

on the day of the Rule 37 hearing. Flemons contends that he was denied due process when

the court failed to grant a continuance because he had been given incorrect information by

the clerk’s office about the procedures for having subpoenas issued for his witnesses.

The general standard of review for an alleged error in denying a motion for

continuance is abuse of discretion. Green v. State, 2012 Ark. 19, 386 S.W.3d 413. Arkansas

Rule of Criminal Procedure 27.3 (2015) provides that a court shall grant a continuance only

on a showing of good cause and only for so long as is necessary, taking into account not

only the request or consent of the prosecuting attorney or defense counsel, but also the

public interest in prompt disposition of the case. The burden of establishing an abuse of the

trial court’s discretion is the appellant’s, and, in addition to demonstrating that the court

abused its discretion by denying the motion, the appellant must show prejudice that amounts

to a denial of justice. Riddell v. State, 2011 Ark. 21. When a motion for continuance is

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based on a lack of time to prepare, we consider the totality of the circumstances, and a lack

of diligence alone is sufficient cause to deny a continuance. Thomas v. State, 370 Ark. 70,

257 S.W.3d 92 (2007).

In this case, Flemons concedes facts that establish a lack of diligence, which is further

supported by the record of the proceedings. The trial court granted two earlier requests for

a continuance, one from each party. The second such order scheduled the hearing for

February 12, 2014. Flemons admitted in a motion that he filed January 9, 2014, that he

delayed taking any action to obtain witnesses or evidence because he had been confident

that his motion for appointment of counsel filed in November 2013, would be granted,

although it was not. He also asserted in his request to the trial court at the Rule 37 hearing

that he had delayed action because of his unfounded belief that the pending motion for

appointment of counsel would be granted. While he contends that he also delayed action

because he wished to amend the petition, both petitions were amended in November 2013.

At that time, Flemons was well aware of all allegations that he would need to support,

and he was in a position to seek the necessary subpoenas. Instead, he apparently chose to

gamble on the outcome of a pending motion, which he hoped would relieve him of that

responsibility. As the trial court explained in its rulings on Flemons’s motions made the day

of the hearing, his confusion over the clerk’s instructions for obtaining subpoenas may have

justified some delay if Flemons had acted with diligence to obtain the subpoenas after he

had allegedly been given incorrect or confusing information in August 2013. Instead,

Flemons did not act on that information until February 2014, shortly before the hearing

date and more than two months after he amended the Rule 37.1 petitions. Flemons’s lack

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of diligence as demonstrated by a delay of more than two months from the time that

Flemons had fully formulated his claims was sufficient cause for the trial court to deny the

motions for continuance.

Flemons next alleges error in the trial court’s denial of his motion for appointment

of counsel. Flemons contends that he was entitled to counsel to assist him in developing his

claims for the Rule 37 proceedings under the United States Supreme Court’s holdings in

Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013).

This court has rejected the argument that Martinez and Trevino require appointment of

counsel. Mancia v. State, 2015 Ark. 115, 459 S.W.3d 259. The trial court has discretion to

appoint counsel under Arkansas Rule of Criminal Procedure 37.3(b) (2015), and, in order

to demonstrate an abuse of discretion by the trial court in declining to appoint counsel, an

appellant must have made a substantial showing that his petition included a meritorious

claim. Walden v. State, 2016 Ark. 306 (per curiam). Flemons did not make such a showing,

and there was no abuse by the trial court in denying his motion for appointment of counsel.

Flemons also alleges error in the denial of his requests for a copy of the transcripts of

his trials. Indigency alone does not require a trial court to provide a petitioner with free

photocopying. Demeyer v. State, 2016 Ark. 9 (per curiam). To be entitled to a copy of a

transcript or other written material at public expense, a convicted defendant must

demonstrate to the court a compelling need for the transcript or other material to support a

specific allegation contained in a timely petition for postconviction relief. Id. Here,

Flemons pointed the trial court to no specific allegations for which there was a compelling

need for material from the transcript in order to develop his arguments. He alleged that one

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transcript was needed to identify inconsistencies in the confidential informant’s testimony,

but he failed to explain how these inconsistencies would support any specific issue in his

petition. Such vague, conclusory declarations did not provide a demonstration of the

compelling need required in order to support granting a request for a copy of the transcript.

Flemons’s remaining points on appeal are claims that the trial court erred in denying

postconviction relief by failing to find ineffective assistance of counsel. This court will not

reverse a trial court’s decision granting or denying postconviction relief unless it is clearly

erroneous. Houghton v. State, 2015 Ark. 252, 464 S.W.3d 922; Kemp v. State, 347 Ark. 52,

60 S.W.3d 404 (2001). 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. Turner v. State, 2016 Ark. 96, 486

S.W.3d 757.

When considering an appeal from a denial of a Rule 37.1 petition based on

ineffective-assistance-of-counsel claims, the sole question presented is whether, based on the

totality of the evidence under the standard set forth by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668 (1984), the trial court clearly erred in finding that

counsel was not ineffective. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29. The benchmark

for judging a claim of ineffective assistance of counsel must be whether counsel’s conduct

so undermined the proper functioning of the adversarial process that the trial cannot be

relied on as having produced a just result. Id.

Our standard for ineffective-assistance-of-counsel claims is the two-prong analysis set

forth in Strickland. Rasul v. State, 2015 Ark. 118, 458 S.W.3d 722. Under that standard, to

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prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1)

counsel’s performance was deficient and (2) the deficient performance prejudiced his

defense. Mister v. State, 2014 Ark. 446. Unless a petitioner makes both showings, the

allegations do not meet the benchmark on review for granting relief on a claim of ineffective

assistance. Houghton, 2015 Ark. 252, 464 S.W.3d 922.

Counsel is presumed effective, and allegations without factual substantiation are

insufficient to overcome that presumption. Henington v. State, 2012 Ark. 181, 403 S.W.3d

55. A petitioner claiming deficient performance must show that counsel’s representation

fell below an objective standard of reasonableness, and this court must indulge in a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance. Id. A petitioner has the burden of overcoming the presumption that counsel is

effective by identifying specific acts and omissions that, when viewed from counsel’s

perspective at the time of trial, could not have been the result of reasonable professional

judgment. Id.

Flemons initially asserts in only general, conclusory terms that the trial court

committed error as to all of Flemons’s ineffective-assistance claims in his two petitions,

reasserting his arguments in the previous points on appeal. For the reasons already noted,

Flemons’s previously asserted claims fail. The remainder of Flemons’s argument in this first

point alleging ineffective assistance of counsel consists of only conclusory statements.

Allegations of bare conclusions do not overcome the presumption of trial counsel’s

competence. Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783. Where an appellant does

not allege in what regard the trial court’s rulings on ineffective-assistance claims were clearly

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erroneous, his arguments fail because conclusory statements cannot be the basis of

postconviction relief. Id.

In Flemons’s next point on appeal, he contends that trial counsel was ineffective

because she failed to adequately investigate the procedures used by the drug-task-force

officers in conducting the controlled buys that resulted in the drug charges and convictions

and because counsel did not, prior to trial, interview Greg Napier, the officer who

conducted the search of the confidential informant (“CI”) who carried out the controlled

buys. Flemons alleged that counsel failed to obtain the relevant policies and that, had she

done so, she could have more effectively cross-examined the witnesses and challenged the

search procedures used. Flemons’s argument fails because he did not demonstrate that a

more probing investigation would have changed the outcome of the trial.

A claimant must show that there is a reasonable probability that the fact-finder’s

decision would have been different absent counsel’s alleged errors in order to meet the

second prong of the Strickland test. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883. A

reasonable probability is a probability sufficient to undermine confidence in the outcome of

the trial. Id. In reviewing an assertion of ineffective assistance of counsel based on failure

to investigate, a petitioner must describe how a more searching pretrial investigation would

have changed the results of his trial. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895. The

burden is entirely on the claimant to provide facts that affirmatively support his claims of

prejudice. Id.

As the trial court found, trial counsel thoroughly cross-examined the witnesses at trial

concerning the procedures used to search the CI. Counsel brought out a number of issues

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with the search methodology used, and Flemons did not show that pointing to any particular

variation from an established policy would have made the challenge any more effective or

that counsel would have learned anything of significance from an interview with the officer

who conducted the search. As a consequence, Flemons failed to demonstrate a reasonable

probability that the jury’s decision would have been different absent counsel’s alleged errors.

Flemons therefore failed to meet his burden to demonstrate prejudice for his claim that

counsel was ineffective for the failure to investigate.

In his next point on appeal, Flemons contends that trial counsel was ineffective for

not raising a defense of entrapment and for not having the jury instructed on that defense.

The trial court found that counsel had made a strategic decision not to pursue the defense.

Under Arkansas Code Annotated section 5-2-209 (Repl. 2013), a defendant may

raise an affirmative defense that he was entrapped into committing an offense when a law-

enforcement officer or any person acting in cooperation with a law-enforcement officer

induces the commission of an offense by using persuasion or other means likely to cause a

normally law-abiding person to commit the offense. The statute provides that conduct

merely affording a person an opportunity to commit an offense does not constitute

entrapment. Ark. Code Ann. § 5-2-209(b)(2). This court has held that a defendant may

request jury instructions on entrapment when there is sufficient evidence to support the

instruction even though the defendant denies an element of the charge. Smoak v. State,

2011 Ark. 529, 385 S.W.3d 257. As noted in Smoak, the two theories of defense are

inconsistent, however.

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Counsel testified at the Rule 37 hearing that she made a strategic decision not to use

an entrapment defense. She explained that she believed the defense was, as a practical

matter, impossible to prove, and she indicated that she did not want to risk having evidence

of Flemons’s past drug use brought in to counter an entrapment defense. Counsel brought

out through testimony that the CI had asked to meet at the park, and she testified that she

believed that this evidence may have helped the jury conclude that the minimum

enhancement for the proximity enhancements was appropriate. Counsel did not believe

that there was sufficient evidence to support entrapment as to the delivery charges. Because

no drugs or buy money were found in Flemons’s possession, she believed the innocence

defense that she elected to utilize instead was a stronger defense.

When a decision by trial counsel is a matter of trial tactics or strategy and that decision

is supported by reasonable professional judgment, then such a decision is not a proper basis

for relief under Rule 37. Van Winkle v. State, 2016 Ark. 98, 486 S.W.3d 778. It is well

settled that trial counsel’s decisions regarding what theory of the case to pursue represent

the epitome of trial strategy. Id. Here, Flemons contends that the decision not to utilize

an entrapment defense was not reasonable. He contends that it was not necessary for him

to testify to present an entrapment defense, that his prior convictions may not have been

admissible, and that, because evidence of entrapment concerning the proximity

enhancement was admitted, the jury should have been instructed as to the defense.

Even if Flemons may have been entitled to a jury instruction on entrapment, his

attorney was not ineffective simply for failing to request the instruction. This court has

recognized that an “all-or-nothing” approach in the decision not to request instructions on

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lesser-included offenses is not unreasonable simply because the strategy fails. Feuget v. State,

2015 Ark. 43, 454 S.W.3d 734. The circumstances here are similar. Counsel explained her

reasons for not pursuing an inconsistent defense to what she believed was a relatively strong

innocence defense. Flemons failed to show that a decision by trial counsel not to dilute the

impact of a stronger defense with jury instructions on an inconsistent defense or the

presentation of confusing argument about such a defense was unreasonable. The trial court,

therefore, was not clearly erroneous in denying postconviction relief on this issue.

In Flemons’s final point concerning the judgment on the drug charges, he alleges

error by the trial court in finding that Flemons’s claim that the prosecutor withheld

information concerning Officer Napier’s personnel file was not cognizable. Flemons

contends that he was entitled to raise any constitutional issue in the Rule 37 proceedings.

He was not.

With the exception of fundamental error that renders the judgment void and subject

to collateral attack, it is not appropriate to raise trial error, including constitutional errors,

for the first time in a Rule 37 proceeding. Howard v. State, 367 Ark. 18, 238 S.W.3d 24

(2006). We have held allegations of prosecutorial misconduct to be the type of issue that

should have been raised on direct appeal and therefore may not be raised for the first time

in Rule 37 proceedings. Id. Direct challenges, including allegations such as prosecutorial

misconduct, are not cognizable in Rule 37 proceedings. Wood v. State, 2015 Ark. 477, 478

S.W.3d 194. Even an allegation that evidence was withheld by the prosecution in violation

of Brady v. Maryland, 373 U.S. 83 (1963), may not constitute fundamental error that would

render the judgment subject to collateral attack so as to be cognizable in Rule 37

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proceedings if the issue was one that could have been raised at trial or on direct appeal.

Frazier v. State, 2016 Ark. 55, 482 S.W.3d 305 (per curiam).

In this case, even assuming that Flemons’s claim that the prosecution withheld

evidence could be construed as an allegation of fundamental error and not one that could

have been raised at trial or on appeal, he included only conclusory statements in the petition

without a factual basis sufficient to raise a Brady violation. A petitioner under Rule 37.1 has

the burden of pleading facts to support his claims, and conclusory allegations that are

unsupported by facts do not provide a basis for an evidentiary hearing on the claim or for

postconviction relief. Henington, 2012 Ark. 181, 403 S.W.3d 55. Flemons failed to identify

any specific information that was contained in the personnel file, and he therefore failed to

allege any factual basis in support of his claim that the file may have been used to impeach

Napier. Such conclusory statements cannot be the basis of postconviction relief.

Turning to Flemons’s allegations of ineffective assistance of counsel concerning the

judgment of conviction for fleeing apprehension and leaving the scene of a personal injury

accident in case number CR-11-987, his first two points on appeal assert that trial counsel

was ineffective for failing to timely object to Flemons’s appearing in front of the jury in

restraints and for failing to request a cautionary instruction in that regard. The record from

the direct appeal indicates that there was a discussion between Flemons and the judge before

the jury panel was brought in.1 Flemons notes that the judge encouraged him to change

1
We may take judicial notice of the record from the earlier appeal without need to
supplement the record. Adkins v. State, 2015 Ark. 336, 469 S.W.3d 790 (per curiam). At
Flemons’s request, the trial court admitted into evidence at the Rule 37 hearing the abstract
from Flemons’s attorney’s brief on direct appeal in order to better illustrate these facts.
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into civilian dress but that there was no specific discussion of the restraints until a later

conversation, after the State rested its case, concerning whether Flemons would testify.

During the Rule 37 hearing, co-counsel testified that she and the lead attorney had

tried to persuade Flemons to change into civilian clothes before going into the court room.

They had explained that, if he would do so, there was a leg-brace restraint that should fit

under the civilian clothes and would not be visible to the jury. Flemons refused, and he

continued to refuse to change into civilian clothing when brought into the court room.

After counsel objected to Flemons’s appearing in his jail clothes, without any mention of

the restraints, the judge cautioned Flemons that his actions would be considered a waiver

and that, because he had declined the invitation to change into civilian clothing, he would

be considered to have chosen to appear before the jury “as he is.”

When Flemons was asked, after the State rested, whether he wished to testify, he

initially responded that he could not do so because he was shackled. After some discussion

in which Flemons continued to be uncooperative in responding to questions, his attorney

admitted that she had not previously objected specifically to the restraints and moved for a

mistrial on the bases that Flemons was dressed in prison garb and that he was in restraints.

The motion was denied. Counsel then moved for an instruction regarding the jail attire,

and the court agreed to provide one. The instruction given addressed both Flemons’s

clothing and the restraints and cautioned the jury to disregard those facts during their

deliberations.

In its order denying postconviction relief, the trial court found that counsel had

objected to the restraints and that Flemons had failed to demonstrate any prejudice from his

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counsel’s failure to request a curative instruction on the restraints. The court also noted that

Flemons should not be permitted to complain of prejudice resulting from his own willful

behavior and commented that a failure to draw further attention to Flemons’s obstinateness

may not have been beneficial but did not rise to the level of prejudice to support Flemons’s

claim.

Even if, as Flemons maintains, counsel was late in objecting to the restraints or failed

to request an appropriate jury instruction, he has not demonstrated prejudice from those

actions to satisfy the second prong of the Strickland standard. This court has held that a

defendant cannot be allowed to abort a trial and frustrate the process of justice by his own

acts. Britton v. State, 2014 Ark. 192, 433 S.W.3d 856. The evidence at the Rule 37 hearing

was that Flemons refused to change into civilian clothing even after it was explained to him

that this change would allow him to wear restraints that would not be visible to the jury.

Flemons offers only his own irritation for being shackled as an excuse for his lack of

cooperation, and, Flemons has not shown that, had counsel also timely objected to Flemons

appearing before the jury in the restraints, the objection would have been any more

successful than the motion concerning the jail clothing or the motion for mistrial. As for

counsel’s failure to request that the cautionary jury instruction include an admonition about

the restraints, the instruction did include such an admonition. Because Flemons failed to

demonstrate that he was prejudiced by the alleged deficient performance, the trial court was

not clearly erroneous in denying relief on these issues.

Flemons next asserts that counsel was ineffective for failing to investigate his mental

state as a defense to the charges. On appeal, Flemons contends that counsel should have

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discovered a determination by an administrative law judge that Flemons was disabled and

had been diagnosed with impulse-control disorder. We need not address this issue.

In his Rule 37.1 petition, Flemons alleged that counsel had failed to adequately

investigate the case, but Flemons did not include the argument raised on appeal in his

petition. Flemons did raise the issue during the Rule 37 hearing, but, to the extent that

Flemons may have sought to amend his petition during the hearing to include the new issue,

he did not obtain the trial court’s permission to do so. See Adams v. State, 2013 Ark. 174,

427 S.W.3d 63 (holding that under Arkansas Rule of Criminal Procedure 37.2(e), the trial

court had discretion to deny leave to amend a petition); see also Weaver v. State, 339 Ark.

97, 3 S.W.3d 323 (1999) (holding that the trial court did not abuse its discretion in denying

an effort to amend on the day of the Rule 37 hearing in order to add a new claim). Even

if Flemons had been granted leave to amend his petition to include the claim, he failed to

obtain a ruling on it. Van Winkle v. State, 2016 Ark. 98, 486 S.W.3d 778 (holding that an

argument was not preserved for appellate review and this court was precluded from review

on appeal where the trial court had not provided a ruling on the argument).

In Flemons’s next point on appeal, he alleges ineffective assistance of counsel for

failure to investigate and present mitigation evidence for sentencing. The trial court found

that counsel had investigated and considered possible mitigating evidence and then made a

strategic decision not to use that evidence. On appeal, Flemons contends that counsel did

not conduct an adequate investigation in order to make such a decision and that counsel

could have presented evidence of Flemons’s mental state as described in the disability

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determination noted in the previous point by calling the doctor who had diagnosed him

with an impulse-control disorder.

In cases where the defendant was not subject to the possibility of the death penalty,

the failure to investigate, discover, and present mitigating evidence is not deemed ineffective

assistance of counsel. State v. Smith, 368 Ark. 620, 249 S.W.3d 119 (2007). Although

Flemons received the maximum sentence possible on the charges in this case, the Strickland

standard must nevertheless be satisfied, as with any other allegation of ineffective assistance

of counsel for failure to investigate, and a petitioner must demonstrate that a more searching

pretrial investigation would have changed the results of his trial. Wertz, 2014 Ark. 240, 434

S.W.3d 895. The trial court found that trial counsel had investigated mitigating evidence

and made a strategic decision not to present any. As previously noted, when a decision by

trial counsel is a matter of trial tactics or strategy and that decision is supported by reasonable

professional judgment, then such a decision is not a proper basis for relief under Rule 37.

Van Winkle, 2016 Ark. 98, 486 S.W.3d 778.

Flemons does not now dispute that counsel made an investigation of possible

mitigating evidence or that counsel was aware of his diagnosis with an impulse-control

disorder. Instead, he contends that counsel’s strategic decision not to further investigate this

evidence and call the doctor who diagnosed him was unreasonable. Trial counsel testified

that, in her professional experience, the twelve previous felony convictions that Flemons

had at the time of this trial would have outweighed any mitigating evidence that may have

been available. Specifically, she noted that evidence concerning Flemons’s diagnosis was

not likely, in her professional opinion, to have been beneficial in this case and may instead

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have been damaging. We cannot say that the trial court was clearly erroneous in finding

that counsel’s decision fell within the wide range of reasonable professional assistance.

Flemons next alleges that appellate counsel was ineffective for failing to raise an

argument on appeal challenging the sufficiency of the evidence based on the motion for

directed verdict that was made on the fleeing charge. In the direct appeal, the court of

appeals noted that the argument that had been made in the motion for directed verdict as

to the fleeing-apprehension charge was different from the argument made for leaving the

scene of an injury accident. Flemons, 2013 Ark. App. 280. On appeal, the argument as to

both charges was that there was not sufficient evidence that Flemons drove the car. At trial,

the argument concerning the fleeing-apprehension charge had been that there was

insufficient evidence that the driver of the vehicle knew that his apprehension was

imminent. Flemons is correct that the trial court erroneously found that the court of appeals

had disposed of that argument on appeal.

Nevertheless, the trial court was not clearly erroneous to deny postconviction relief

on this claim. We will affirm a trial court’s decision if it reached the right result, albeit for

the wrong reason. Jones v. State, 347 Ark. 409, 64 S.W.3d 728 (2002). Counsel is not

ineffective for failing to make a motion or argument that is without merit. Watson v. State,

2014 Ark. 203, 444 S.W.3d 835. Had appellate counsel raised the challenge to the

sufficiency of the evidence that had been raised at trial, the challenge would have failed.

The testimony at trial was that three officers were conducting a sobriety checkpoint.

When Flemons came to the checkpoint, one of the officers came up to the car and asked

Flemons for his driver’s license. Flemons stated that he did not have it with him, and the

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officer instructed Flemons to move to the right shoulder. Flemons pulled the car over, but

as the officer approached it, he sped off. These facts are sufficient to establish that Flemons

knew that his immediate arrest or detention was being attempted by a duly authorized law-

enforcement officer, and a challenge to the sufficiency of the evidence on the basis raised in

the motion for directed verdict would have failed if raised on appeal. See Ark. Code Ann.

§ 5-54-125(a) (Repl. 2016).

Finally, Flemons urges this court to reconsider its stance regarding cumulative error.

This court does not recognize cumulative error in allegations of ineffective assistance of

counsel. Turner v. State, 2016 Ark. 96, 486 S.W.3d 757. It is reversible error for the trial

court to consider cumulative error in its analysis of claims of ineffective assistance of counsel

under the Strickland test. State v. Hardin, 347 Ark. 62, 60 S.W.3d 397 (2001). A party asking

this court to overrule a prior decision such as this has the burden of showing that our refusal

to overrule the prior decision would result in injustice or great injury. Houghton, 2015 Ark.

252, 464 S.W.3d 922. Although Flemons contends that we have misinterpreted Strickland,

he develops no argument in that regard. As we did in Houghton, we decline to overrule our

previous decisions on this issue for that reason.

Affirmed.

Aaron A. Flemons, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee

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