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SUPREME COURT OF ARKANSAS
N". cR-16-606
opinion Delivered: April 27,2017
ROBERT SANDRELLI
APPELLANT APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT
V. INO. CR-2012-118e]
STATE OF ARKANSAS HONORABLEJ. MICHAEL
APPELLEE FITZHUGH, JUDGE
AFFIRMED.
RHONDA K. \VOOD, Associate Justice
This appeal returns to us after we remanded for the circuit court to hold a hearing
on two of Robert Sandrelli's claims for ineffective assistance of counsel. After holding the
.We
hearing, the court denied relief on both grounds. affirm the circuit court's judgment.
Robert Sandrelli was charged with four counts of rape. The victim was Sandrelli's
fourteen-year-old son. Ajury trial was held in August 2013. This first trial resulted in a hung
jury, and the circuit court declared a mistrial. A second trial was held a month later, which
resulted in Sandrelli being convicted on all four counts. Our court of appeals affirmed the
convicrion in Sandrelli u. State,2015 Ark. App. 1,27.
Following direct review, Sandrelli filed a petition for postconviction relief under
Arkansas Rule of Criminal Procedure 37.1. Sandrelli propounded three claims ofineffective
assistance of counsel that he aileged occurred at his second trial: (1) defense counsel was
under emotional and professional stress; (2) defense counsel failed to call any character
witnesses; and (3) defense counsel unilaterally decided that Sandrelli would not testify. The
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a
circuit court denied Sandrelli's petition without holding a hearing. Sandrelli appealed to this
court, arguing that he was entitled to a hearing on his claims.
We afErmed in part and reversed and remanded in part. See Sandrelli u. State, 201.6
Ark. 103,485 S.W.3d692. We held that Sandrelli's first claimwas conclusory; therefore,
he was not entitled to a hearing on it. But we remanded for a hearing on the last two claims.
Because the circuit court apparently struggled to understand why this court was remanding
the matter and did not understand the concept of a "control-case," we once again explain.
This is similar to control-groups in scientific experiments. F{ere, two different trials took
place, with two different outcomes. The first trial resulted in a hung jury and the second
trial resulted in a conviction. Sandrelli's petition for postconviction relief claimed that the
only fact distinguishing the rwo trials was the lack of deGnse witnesses at the second trial.
The circuit court, based on the record alone, found that counsel and Sandrelli "must have
agreed no witnesses would be called." This was speculative. We held that the circuit court
could not conclusively determine, without some evidence, that counsel's decisions were
supported by reasonable professional judgment. The circuit court should not guess the
reasons behind the trial counsel's decisions; rather, the court should establish those reasons
based on evidence presented at a hearing.
On remand, the circuit court held a hearing on these two claims. Sandrelli testified
at the hearing. He stated that he testified in the first trial and intended to testi$r again at the
second trial. Yet he claimed that his attorney, Ray Spruell, never asked him to make a
decision whether to testify. Rather, Spruell informed him, after the first day of trial, that he
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would not be testi$ring. Sandrelli also stated that Spruell never discussed with him his
decision to call no character witnesses at the second trial.
Spruell testified as well. He stated that whiie the first trial ended in a hung jury, the
vote was 11-1 in favor of conviction. Spruell thought the character witnesses who testified
in the first triai played an insignificant role in the jrry'r decision: "The bottom line is I never
felt that character witnesses were the key to why we got a hung jury the first time around."
For instance, Spruell noted that one witness, Betty Turner, was neryous on the stand and
agreed on cross examination that she "assumed that if something was going on [the victim]
would keep quiet and wouldn't say anything about it." Spruell also noted that the witnesses
appeared to be surprised when they were confronted with Sandrelli's earlier conviction for
domestic battery against his son.
'W.oodrow
Spruell testified that the best character witness, Star, told him berween the
first and second trials that he would no longer be a good character witness for Sandrelli.
According to Spruell, Star told him that Sandrelli had displayed behavior that would cause
Star to change his testimony about Sandrelli's truthfulness. Star testified as well, but he
denied that this interaction ever took place.
Finaily, Spruell stated that he told Sandrelli that the decision whether to testify rested
with Sandrelli. Spruell asserted that he recommended that Sandrelli not testify: "l knew that
Mr. Sandrelli didn't like to testiSz in the first ftriai]. So, I explained to him that it was going
to be rough on him the second time around and I didn't think he would iook good up
there." Spruell stated that Sandrelli agreed that he should not testify. One particular concern
Spruell had was Sandrelli's testimony during the first trial. When questioned about his
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domestic-battery charge against his son, Sandrelli inirially maintained rhat it was a football
injury. Yet when pressed by the prosecution, Sandrelli admitted that the he had thrown his
son across the room. This spontaneous admission contradicted a video-recorded interview
that was admitted during the second trial, wherein Sandrelli "adamantly" denied to the
police that he had ever thrown his son. Spruell was concerned how the inconsistencies
would affect Sandrelli on cross.
The circuit court issued a written order denying Sandrelli's petition. The court found
that counsel's decision to call no witnesses in the second trial "was a sound professional
judgment by an experienced advocate and that it was reasonable." The court further found
that "not only was counsel's advice [whether to testi$r] a matter of professional judgment of
a very experienced attorney, but the decision was made by the Defendant." Finally, the
court noted that Sandrelli's testimony was "self-serving, inconsistent, and totally
unreasonable and not believable."
We do not reverse the grant,or denial of postconviction relief unless the circuit court's
findings are clearly erroneous. Lemasteru. 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. Id.
Under the two-prong standard from Strickland u. Washington, 466 U.S. 668 (1984), a
petitioner seeking postconviction relief must show that his counsel's performance was
deficient and that the deficient performance resulted in prejudice. See Feuget u. State,2015
Ark. 43, 454 S.W.3d734. Under this standard, the petitioner must first show that counsel's
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performance was deficient. Id. 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. Id. 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. There is
no reason for a court deciding an ineffective-assistance claim to address both components of
the inquiry if the defendant makes an insufficient showing on one. Fukunaga 1). State, 201.6
Ark. 164, 489 S.W.3d 644. As we discuss below, counsel's performance was not deficient,
so we decline to address whether Sandrelli suffered prejudice.
"There is a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance, and the petitioner has the burden of overcoming that
presumption by identifying the acts and omissions of counsel which, when viewed from
counsel's perspective at the time of trial, could not have been the result of reasonable
professional judgment." Feuget,2015 Ark. 43, at 4,454 S.W.3d at738. "Matters of trial
strategy and tactics, even if arguably improvident, fall within the realm of counsel's
professional judgment and are not grounds for a finding ofineffective assistance of counsel."
Noel u. state,342 Ark. 35, 41,-42,26 S.W.3d 1.23, 1.27 (2000).
Sandrelli's argument on appeal takes issue with the circuit court's performance as a
fact-finder. For example, he argues that the circuit court "focuses on the points that would
support the trial counsel and ignores the facts that would support the appellant." He
highlights testimony from-Woodrow Star, who testified that he never told Spruell that he
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had reservations about testifying in the second trial. Sandrelli notes that Star's testimony
contradicted Spruell's testimony. Flowever, as we have repeatedly held, it is axiomatic that
credibility determinations are within the province of the trial court. Williams u. State,2011
Ark.489,385 S.W.3d228. 'When there is a conflict of testimony, it is the trial court's job
ro resolve rt. Atchison u. state,298 Ark. 344,767 S.'W.2d 31,2 (1,989). The circuit coult
credited trial counsel's testimony and concluded that the decision to call no character
witnesses was based on reasonable professional judgment. This ruling was not clearly
erToneous.
'We also affirm on the second point. Sandrelli argues that the court erred when it
"did not address the fact brought forth on the failure to Spruell to get on the record the
decision of appellant to not testi$r." We have held in an earlier case that the failure to make
a record on the waiver of the right to testify does not constitute ineffective assistance of
counsel. Williams,2011 Ark. 489, at 14, 385 S.W.3d at237 .In any event, the court credited
Spruell's testimony that Sandrelli agreed not to testify and found Sandrelli's contrary
testimony unbelievable. Spruell explained that in the first trial the State did not play the
video interviews with Sandreili; however, in the second trial, the State did introduce the
video. Spruell was concerned by Sandrelli's demeanor in the video as well as the video
interview depicting Sandrelli giving different answers than he gave on cross-examination in
the 6rst trial. Spruell stated that he explained these facts to Sandrelli and that Sandrelli agreed
that he should not testify. The circuit court did not clearly err when it found that Spruell's
advice to not testify was based on reasonable professional judgment.
Affirmed.
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David L. Dunagin, for appellant.
Leslie Rutledge, Att'y Gen., by: Valerie Glover Fortner, for appellee.