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                   SUPREME COURT OF ARKANSAS
                                         No.   CR-12-774

DONALD RAY MATHIS                                   Opinion Delivered   April 3, 2014
                                APPELLANT
                                                    PRO SE APPEAL FROM THE UNION
V.                                                  COUNTY CIRCUIT COURT [NO. 70CR-
                                                    09-64]

STATE OF ARKANSAS                                   HONORABLE HAMILTON H.
                                  APPELLEE          SINGLETON, JUDGE

                                                    AFFIRMED.


                                        PER CURIAM


       In 2009, appellant Donald Ray Mathis was found guilty by a jury of simultaneous

possession of drugs and firearms, possession of a controlled substance, marijuana, and

maintaining a drug premises. The drug premises was a motel room that appellant often occupied

with a woman named Gwendolyn Miller. He was sentenced as a habitual offender to 1344

months’ imprisonment. The Arkansas Court of Appeals affirmed. Mathis v. State, 2010 Ark.

App. 655.

       Appellant subsequently filed in the trial court a timely, verified pro se petition for

postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009). The petition

was denied, and appellant brings this appeal. Our jurisdiction is pursuant to Rule 37 and

Arkansas Supreme Court Rule 1-2(a)(8) (2013).

       This court has held that it will reverse the circuit court’s decision granting or denying

postconviction relief only when that decision is clearly erroneous. Johnson v. State, 2014 Ark. 74;

Pankau v. State, 2013 Ark. 162. A finding is clearly erroneous when, although there is evidence
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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. Sartin v. State, 2012 Ark. 155, 400 S.W.3d

694.

       In his petition under the Rule, appellant alleged that he was denied due process of law

and that he had not been afforded effective assistance of counsel. When considering an appeal

from a trial court’s denial of a Rule 37.1 petition based on ineffective assistance of counsel, the

sole question presented is whether, based on a 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 holding that counsel’s performance was not ineffective. Craigg v. State,

2014 Ark. 71 (per curiam); Taylor v. State, 2013 Ark. 146, ___ S.W.3d ___.

       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.” Strickland, 466 U.S. at 686. Pursuant to

Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner

raising a claim of ineffective assistance must show that counsel made errors so serious that

counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment

to the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). There

is a strong presumption that trial counsel’s conduct falls within the wide range of professional

assistance, and an appellant has the burden of overcoming this presumption by identifying

specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the

time of the trial, could not have been the result of reasonable professional judgment. Henington



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v. State, 2012 Ark. 181, 403 S.W.3d 55; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per

curiam). Second, the petitioner must show that counsel’s deficient performance so prejudiced

petitioner’s defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, ___

S.W.3d ___. A petitioner making an ineffective-assistance-of-counsel claim must show that his

counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State,

2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner must show that there is a reasonable

probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt

respecting guilt, i.e., the decision reached would have been different absent the errors. Howard

v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability sufficient

to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the

trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in

sentencing. Id. Unless a petitioner makes both showings, it cannot be said that the conviction

resulted from a breakdown in the adversarial process that renders the result unreliable. Id.

“[T]here 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.” Strickland,

466 U.S. at 697.

       Appellant first argues on appeal that trial counsel was ineffective in that counsel did not

investigate the case thoroughly and “existent an independent Ake expert for presentation of

mitigating evidence.” First, assuming that appellant is referring to Ake v.Oklahoma, 470 U.S. 68

(1985), in Ake, the Court held that when an indigent defendant makes a preliminary showing

that his sanity at the time of the offense is likely to be a significant factor at trial, due process



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requires a state to provide access to a psychiatrist’s assistance on the issue. There was no

allegation in the Rule 37.1 petition concerning Ake. As a result, the argument will not be

considered in this appeal. An appellant in a Rule 37.1 proceeding is limited to the scope and

nature of the arguments advanced below, and an appellant cannot raise new arguments on

appeal. Dodson v. State, 2013 Ark. 385 (per curiam); Hogan v. State, 2013 Ark. 223 (per curiam).

        In his recitation of examples of counsel’s failure to investigate the case, appellant

contends that counsel should have subpoenaed Wanda Tate and an employee of the motel to

testify. He further asserts that counsel should have been prepared to challenge the testimony

of investigator Josh Newton. The claims concerning Tate, the motel employee, and Newton

were not raised in the Rule 37.1 petition and will not be addressed on appeal. Dodson, 2013 Ark.

382.

        As his second point on appeal, appellant argues that his attorney was remiss in not

requesting jury instructions on the lesser-included offense of simple possession of marijuana.

To prevail under Rule 37.1, the petitioner must offer facts to show that counsel’s failure to

request an instruction on a lesser-included offense prejudiced the defense to the extent that

petitioner was deprived of a fair trial. Mitchell v. State, 2012 Ark. 242. When it is asserted that

counsel was ineffective for failure to make a motion or argument, the petitioner must show that

the motion or argument would have been meritorious because the failure to make an argument

that is meritless is not ineffective assistance of counsel. Id.; see also Woody v. State, 2009 Ark. 413.

Here, there was evidence adduced at trial that a search pursuant to a warrant was conducted on

the motel room in which appellant and Gwendolyn Miller were often observed entering and


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exiting. In the room, the officers found a substantial amount of cash, two loaded firearms, a set

of digital scales, a marijuana pipe, multiple boxes of plastic baggies, a razor blade, 164 grams of

marijuana packaged in individual baggies, and a ledger listing names and nicknames next to

different money amounts. There was also evidence that appellant was with Miller when several

drug transactions occurred and that some of the transactions occurred in a vehicle registered to

appellant and another person. In light of the evidence obtained in the search and the evidence

of the drug transactions, appellant did not establish that a motion to proceed with a jury

instruction of simple possession of marijuana would have had merit. Appellant had the burden

of demonstrating that there was a rational basis for the instruction. See Davis v. State, 2011 Ark.

433 (per curiam); see also Hatcher v. State, 2011 Ark. 325 (per curiam). As he failed to do so in his

largely conclusory claim that he was entitled to an instruction on simple possession, he did not

establish that counsel was ineffective. Conclusory claims cannot overcome the presumption that

counsel was effective under the Strickland standard. See Robertson v. State, 2010 Ark. 300, 367

S.W.3d 538 (per curiam).

       Appellant’s third claim on appeal is that counsel should have filed a pretrial motion to

suppress the evidence found in the motel room on the ground that the incriminating material

belonged to someone other than appellant. While appellant raised in the Rule 37.1 petition the

issue of whether counsel should have filed a motion to suppress the evidence, the allegation was

not based on the claim that the evidence belonged to another person. An appellant cannot

change the grounds for an argument for the first time on appeal. Hogan, 2013 Ark. 223.

       In his fourth argument, appellant alleges that he was denied due process of law on the



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grounds that he was not found guilty beyond a reasonable doubt and that the imposition of his

lengthy sentence was a violation of the Eighth Amendment prohibition against cruel and unusual

punishment. Neither ground was a ground for relief under the Rule.

       Questions pertaining to the sufficiency of the evidence are matters to be addressed at trial

and on direct appeal and are not cognizable in a postconviction proceeding. Green v. State, 2013

Ark. 455 (per curiam); Crain v. State, 2012 Ark. 412 (per curiam). A postconviction proceeding

under Rule 37.1 is not a substitute for direct appeal or an opportunity to challenge the strength

of the evidence adduced at trial. Green, 2013 Ark. 455.

       As to the Eighth Amendment claim, which appears to be based, at least in part, on the

fact that the sentences in appellant’s case were ordered to be served consecutively, the issue was

not raised in the Rule 37.1 petition. Nevertheless, because appellant contended in his petition

that his attorney should have objected to the consecutive sentences, we note that appellant did

not claim in his petition that the sentences imposed were outside the statutory range for the

offenses, and the decision to impose the sentences concurrently or consecutively was within the

province of the trial judge. See Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). Appellant did

not demonstrate that counsel could have raised a meritorious objection to the sentence.

       Appellant next contends that his attorney failed “to raise and object to accomplice

corroboration liability.” The argument is based on counsel’s failure to argue at trial that

Gwendolyn Miller, who testified for the prosecution at appellant’s trial, was his accomplice and

that a conviction cannot be had on the testimony of an accomplice unless corroborated by other

evidence connecting the accused with the offense. As there was ample evidence adduced at trial



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of appellant’s guilt that did not depend on Miller’s testimony, her testimony was corroborated.

Also, as the allegation was couched in the Rule 37.1 petition, it appeared to be an attempt to

reargue the sufficiency of the evidence. As stated, the issue of whether there was sufficient

evidence to sustain the judgment against appellant was a matter to be addressed at trial and on

the record on direct appeal.

       In a related allegation, appellant contends that Miller was his wife and counsel should

have objected to her being allowed testify for that reason. First, the record on direct appeal

indicates that appellant was not married to Miller when they were arrested. Morever, while

confidential communication between a husband and wife is privileged under Arkansas Rule of

Evidence 504(a)(b) (2013), the communication is confidential only if it is made privately by any

person to his or her spouse and is not intended for disclosure to any other person. Here, even

if appellant and Miller had been married, appellant did not allege in his petition that Miller

testified that there was a particular confidential communication between him and Miller that was

privileged. Appellant failed to show that there was some meritorious objection that counsel

could have raised to challenge Miller’s testimony.

       Finally, appellant’s brief on appeal is replete with conclusory claims of ineffective

assistance of counsel, some of which were interwoven into the allegations in the Rule 37.1

petition and some of which appear only in the brief. To the extent that the assertions were

raised below and in the appellate brief and can be reviewed for error in this appeal, it is well

settled that conclusory statements that counsel was ineffective will not sustain a petition for

postconviction relief. Criagg, 2014 Ark. 71; Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1983).



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As to the claims raised below and not raised on appeal, those allegations are considered to be

abandoned. Hayes v. State, 2011 Ark. 327, 383 S.W.3d 824 (per curiam).

       Affirmed.

       Donald Ray Mathis, pro se appellant.

       Dustin McDaniel, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.




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