                                   Cite as 2016 Ark. 190


                   SUPREME COURT OF ARKANSAS.
                                       No.   CR-15-975


ROY LEE RUSSELL                                 Opinion Delivered April 28, 2016
                               APPELLANT
                                                PRO SE APPEAL FROM THE DESHA
V.                                              COUNTY CIRCUIT COURT
                                                [NO. 21CR-15-975]
STATE OF ARKANSAS
                                 APPELLEE HONORABLE SAM POPE, JUDGE

                                                AFFIRMED.

                                       PER CURIAM


        In 2013, appellant Roy Lee Russell was found guilty by a jury of second-degree

 battery and of being a felon in possession of a firearm. He was sentenced as a habitual

 offender to 180 months’ imprisonment for the battery offense, and to 480 months’

 imprisonment for the firearms offense, to be served consecutively. Russell had also been

 charged with, and acquitted of, three counts of kidnapping, one count of aggravated assault,

 and three counts of rape.

        The convictions and sentences were affirmed on direct appeal by the Arkansas Court

 of Appeals. Russell v. State, 2014 Ark. App. 357. The mandate was issued by the court of

 appeals on September 4, 2014. Russell filed a timely verified petition for postconviction

 relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2013) in the trial

 court on September 11, 2014. The trial court dismissed the petition for lack of jurisdiction

 on September 18, 2014.
                                    Cite as 2016 Ark. 190

       This court reversed and remanded the case because the trial court failed to address

Russell’s timely claims for postconviction relief. Russell v. State, 2014 Ark. 530 (per curiam).

On remand, the trial court subpoenaed Russell’s medical records for consideration and

concluded that Russell’s claims for ineffective assistance of counsel were not supported by

the record. Russell brings this appeal.

       This court does not reverse the denial of postconviction relief unless the trial court’s

findings are clearly erroneous. Watson v. State, 2014 Ark. 203, at 2–4, 444 S.W.3d 835,

838–39. A finding is clearly erroneous when, although there is evidence to support it, after

reviewing the totality of the evidence, we are left with the definite and firm conviction that

a mistake has been committed. Id. 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). Id. First, a petitioner raising a claim of ineffective

assistance must demonstrate that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Id. The

reviewing court must indulge in a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance. Id. The defendant claiming ineffective

assistance of counsel 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. Id. Second, the

petitioner must show that the deficient performance prejudiced the defense, such that there

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




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counsel’s errors. Id. A reasonable probability is a probability sufficient to undermine

confidence in the outcome of the trial. Id.

       In his first point on appeal, Russell argues that the trial court erred when it denied

his petition without conducting an evidentiary hearing. It is undisputed that the trial court

has discretion pursuant to Arkansas Rule of Criminal Procedure 37.3(a) to decide whether

the files and records are sufficient to sustain the court’s findings without a hearing. Sanders

v. State, 352 Ark. 16, 25–26, 98 S.W.3d 35, 41 (2003). This court has previously interpreted

Rule 37.3 to provide 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. Id. Where the trial court concludes, without a hearing, that the

petitioner is not entitled to relief, Rule 37.3(a) requires the trial court to make written

findings specifying the parts of the record that form the basis of the trial court’s decision.

Id. If the trial court fails to make such findings, it is reversible error, unless the record before

this court conclusively shows that the petition is without merit. Id.

       Here, the trial court thoroughly reviewed the record and specifically cited portions

of the record when reaching its conclusion. Additionally, Russell’s medical records were

obtained, reviewed, and supplemented into the record for a more thorough assessment. The

trial court then determined that Russell was not entitled to relief under the Strickland

standard, because the allegations of attorney error were unsupported by the record. The

trial court did not clearly err in denying the petition without an evidentiary hearing.

Henington v. State, 2012 Ark. 181, at 6, 403 S.W.3d 55, 60 (conclusory allegations that are




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unsupported by facts do not provide a basis for either an evidentiary hearing or

postconviction relief).

       Secondly, Russell contends that counsel was ineffective for failing to investigate or

introduce Russell’s medical records during trial. Russell asserts that the introduction of his

medical records would have supported his defense that he was not the first aggressor. On

remand, the trial court subpoenaed Russell’s medical records and thoroughly reviewed them

before it concluded that their introduction would not have changed the trial’s outcome.

There was no dispute that Russell was injured in the altercation. Harold Shepherd testified

that he struck Russell multiple times with the butt of a gun. The medical records were

merely cumulative evidence that Russell sustained abrasions to his head and face. The

introduction of the medical records would not have supported Russell’s claim that he was

not the first aggressor.

       For his next two points, Russell alleges that counsel failed to interview or call

important fact witnesses and failed to prepare for witnesses. Specifically, Russell complains

that counsel failed to adequately prepare for the testimony of Dr. Maxwell. Dr. Maxwell

had been called by the State to testify about the extent of the injuries sustained by the

victims. Because Dr. Maxwell had also treated Russell, on cross examination counsel asked

Dr. Maxwell to describe the extent of Russell’s injuries. However, without the medical

records as a reference, Dr. Maxwell was unable to recall treating Russell.

       Russell contends that the medical records would have enabled Dr. Maxwell to

describe Russell’s medical treatment and to provide expert medical testimony, as well as to

provide documentation establishing the severity of Russell’s injuries, which Russell again

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maintains was crucial to support his defense that he had not been the aggressor. However,

the extent and severity of Russell’s injuries were presented to the jury for consideration, and

Russell cannot demonstrate prejudice from the absence of what would have been

cumulative evidence. The fact that there was a witness who could have offered beneficial

testimony is not, in and of itself, proof of counsel’s ineffectiveness. Williams v. State, 2015

Ark. 466, at 6, 476 S.W.3d 800, 806. Rather, the burden is on a petitioner to demonstrate

prejudice by establishing that the testimony would have changed the trial’s outcome. Id.

Russell failed to meet this burden.

       For his fifth point on appeal, Russell relies on Arkansas Code Annotated section 5-

1-110(a)(5) and argues that counsel was ineffective when he failed to object to count four,

aggravated assault of three victims, and count eight, second-degree battery of Holly

Davidson, in the felony information as “multiplicitous.” Russell maintains that second-

degree battery, which was charged in count eight, was a lesser-included offense of

aggravated assault, which was charged in count four. The trial court correctly found this

allegation to be without merit. Russell had been acquitted of count four and thus failed to

demonstrate that he was prejudiced by counsel’s alleged failure to object to the charges in

the felony information. To the extent that Russell is alleging that his conviction on count

eight represented an inconsistent verdict in view of his acquittal on count four, that issue

was addressed and rejected by the court of appeals. Russell, 2014 Ark. 530, at 2.

       In his sixth point on appeal, Russell argues that counsel was ineffective for failing to

object to the prosecutor’s closing argument.         Russell contends that the prosecutor

improperly vouched for the victims’ credibility, and counsel unreasonably failed to object.

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After thoroughly reviewing the closing arguments of both the prosecution and the defense,

the trial court found no prejudice. The trial court concluded that the prosecutor’s statement

that he was convinced that a crime had been committed, was made during rebuttal, was

responsive to defense arguments, and was, therefore, proper under the circumstances. See

Stewart v. State, 2012 Ark. 444, at 5 (holding that it was not an abuse of discretion to overrule

an objection during closing argument because the prosecution’s argument concerning

credibility was related to defense counsel’s attacks on witness credibility). Furthermore, it

is well established that because many lawyers refrain from objecting during opening

statement and closing argument, absent egregious misstatements, the failure to object during

closing argument and opening statement is within the wide range of permissible professional

legal conduct. Sasser v. State, 338 Ark. 375, 391, 993 S.W.2d 901, 910 (1999). Russell’s

contention that counsel failed to object during the prosecutor’s closing argument does not

overcome the presumption that counsel’s conduct fell within a wide range of reasonable

professional assistance.

       For his next point on appeal, Russell claims that counsel was ineffective for failing to

challenge his “selective prosecution.” According to Russell, the evidence was sufficient to

charge Harold Shepherd with the same crimes with which Russell was charged and

convicted. Russell maintains that he and Shepherd are similarly situated and that Shepherd

was not prosecuted because he is Caucasian, while Russell is African American.

       We have recognized and adopted the federal standard for evaluating a claim of

selective prosecution, which requires a showing of two elements: (1) proof that the

government had singled the defendant out for prosecution while others similarly situated

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were not prosecuted; and (2) proof that the defendant was being singled out based on an

impermissible motive, such as race, religion, or the exercise of constitutional rights. Owens

v. State, 354 Ark. 644, 656–57, 128 S.W.3d 445, 452–53 (2003) (citing United States v.

Wilson, 806 F.2d 171 (8th Cir. 1986)). An allegation of selective prosecution must be

supported by a specific factual basis before an evidentiary hearing on the matter would be

warranted. Id. at 659, 128 S.W.3d at 454. In order to establish that a defendant is similarly

situated, the circumstances must demonstrate that there were no legitimate prosecutorial

factors justifying the decision to prosecute, such as the strength of evidence against a

particular defendant and the defendant’s role in the crime. United States v. Venable, 666 F.3d

893, 901 (4th Cir. 2012). Here, Russell’s allegations are insufficient to establish a factual

basis for a selective-prosecution claim. The trial court did not clearly err when it concluded

that counsel was not ineffective for failing to raise a selective-prosecution claim.

       Russell also contends that counsel was ineffective for failing to challenge the

imposition of consecutive sentences. The record demonstrates that the jury recommended

consecutive sentences, and the trial court accepted that recommendation.               It is well

established that whether sentences should run consecutively or concurrently lies solely

within the province of the trial court. Throneberry v. State, 2009 Ark. 507, at 7, 342 S.W.3d

269, 272. A defendant assumes a heavy burden of demonstrating that the trial judge failed

to give due consideration to the exercise of his discretion in the matter of the consecutive

sentences. Id. When a petitioner claiming postconviction relief on this basis fails to explain

what factual substantiation counsel could have advanced to the court in favor of a concurrent

sentence, he has not established that counsel was ineffective. Robinson v. State, 2014 Ark.

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310, at 10, 439 S.W.3d 32, 40 (per curiam). Russell does not set forth facts that would have

warranted counsel requesting a concurrent sentence. The trial court correctly found that

counsel was not ineffective for failing to advance a meritless challenge to Russell’s

consecutive sentences.

       For his final assignment of error, Russell maintains that counsel was ineffective for

failing to properly challenge the sufficiency of the evidence so that the issue would be

preserved on direct appeal. The trial court rejected this claim and found that Russell’s

convictions were supported by substantial evidence. The trial court did not clearly err as

the record contains sufficient evidence to support Russell’s convictions.

       Affirmed.

       Roy L. Russell, pro se appellant.

       Leslie Rutledge, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.




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