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                 SUPREME COURT OF ARKANSAS
                                          No.   CR-16-891

                                                    Opinion Delivered: June   1, 2017
ALAN RAY EDWARDS
                                   APPELLANT

V.                                                  APPEAL FROM THE GARLAND
                                                    COUNTY CIRCUIT COURT
STATE OF ARKANSAS                                   [26CR-12-539]
                                      APPELLEE
                                                    HONORABLE JOHN HOMER
                                                    WRIGHT, JUDGE

                                                    AFFIRMED.


                                 ROBIN F. WYNNE, Associate Justice


        Alan Ray Edwards appeals from the denial of his petition for postconviction relief

 pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. On appeal, Edwards

 argues that the circuit court erred by denying his petition because his trial counsel was

 ineffective for (1) failing to elicit testimony from his expert regarding his lack of capacity to

 form intent or, alternatively, failing to argue that ruling such testimony inadmissible violated

 due process by depriving appellant of his only defense; (2) failing to pursue a self-defense

 theory of the case; and (3) failing to present adequate mitigation evidence at sentencing.

 We affirm.

        Appellant was convicted of murder in the first degree with a firearm enhancement

 and attempted murder in the first degree. He was sentenced to a total of sixty-five years’

 imprisonment. His convictions were affirmed by this court on direct appeal. Edwards v.

 State, 2015 Ark. 377, 472 S.W.3d 479. The relevant facts, as recited in our opinion on

 direct appeal are as follows:
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The shootings occurred at Pop–A–Top Club in Hot Springs, Arkansas. A number of
patrons and employees testified at the trial. To summarize, on August 28, 2012,
Edwards offered a $200 tip to Eliza Beth McDaniel, a bartender, which she refused.
Edwards nevertheless slipped the money into her unattended purse. The next day,
Edwards returned to the bar and asked the bartender if she had received the
“surprise.” She unsuccessfully tried to return the money to Edwards. On August 31,
2012, he returned to the bar and asked if she would go out with him. Because
Edwards was married, she declined. Edwards then demanded the money back and
threatened to kill her. She returned $62, which was all the money she had on her,
and offered to return the remainder in a few days. Edwards told her that she had
better return the rest of the money or he would kill her and everyone in the bar.
The bartender reported the incident to the owner and the manager, but rather than
reporting it to the police, the owner and the manager decided that Edwards would
no longer be allowed in bar.

On September 3, 2012, at 3:00 p.m., Edwards entered the bar and was told by the
acting manager, Teresa Williams, that he could not enter the bar until he spoke with
the owner. Edwards began arguing, and a customer, Toby Fowlks, told Edwards that
he needed to leave. Edwards told Fowlks that he was not scared and that Fowlks
could not “kick” his “ass.” Fowlks chased Edwards out of the bar. Outside, Fowlks
struck Edwards in the face, and Edwards left in his vehicle.

Less than an hour later, Edwards returned to the bar with a shotgun in his hands, and
asked, “Where’s that son of a bitch that hit me?” After seeing Fowlks, Edwards said,
“Oh, there you are,” and shot Fowlks twice, killing him. Edwards then turned to
the bartender and said, “Fuck you too.” He shot twice at her but she ducked behind
a gaming machine, thus avoiding injury. When Edwards left the bar, other patrons
at the bar followed him, and after a struggle, the patrons were able to disarm Edwards.

Prior to trial, Edwards obtained the services of Dr. Albert Kittrell, an expert in the
field of psychiatry and forensic psychiatry. Doctor Kittrell conducted an evaluation
of Edwards in which he opined in his report that Edwards suffered from a mental
disease—a psychotic disorder not otherwise specified—at the time of the offenses.
Doctor Kittrell noted that, at the time of the offenses, “several factors impacted Mr.
Edwards’s capacity for purposeful conduct” and that he was “experiencing
considerable emotional upheaval.” Doctor Kittrell, however, opined that, even
though Edwards was diagnosed with a mental disease and was psychotic at the time
of the offenses, Edwards nonetheless did not lack the capacity to appreciate the
criminality of his conduct and did not lack the capacity to conform his conduct to
the requirements of the law at the time of the offenses. In his summary, Dr. Kittrell
noted that “Edwards had impairment in his capacity to have culpable mental state
required to establish an element of the offenses charged.”




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       At an in-camera hearing on Edwards’s fitness to proceed, with the circuit court
       presiding, Dr. Kittrell was asked on what he “base[d] the fact that [Edwards] had the
       impairment of the ... culpable mental state?” Dr. Kittrell noted the diagnosis of a
       psychotic disorder not otherwise specified, meaning that “at some point he had lost
       contact with reality and when I saw him he continued to have ongoing impairment.”
       Doctor Kittrell noted that Edwards told him that he hallucinated and heard voices
       and was suspicious and paranoid. Doctor Kittrell noted that Edwards had not received
       treatment for these conditions.

       On the day of the trial, the State argued that Dr. Kittrell should not be allowed to
       testify that he did not believe that Edwards “had the ability to do a purposeful mental
       state.” In response, Edwards’s attorney asserted that Edwards was entitled to a defense
       and that the jury should determine whether he had a culpable mental state. The court
       took the motion under advisement, and during the trial, the court ruled that “Dr.
       Kittrell cannot testify to his opinion as to whether [Edwards] had the capacity to
       form a purposeful intent.” The court instructed Dr. Kittrell that he could render an
       opinion on Edwards’s “ability to conform his conduct to the requirements of the
       law” but could not opine “as to his ability to form the requisite mental intent for this
       crime.”

       During his testimony, Dr. Kittrell again opined that Edwards suffered from a mental
       disease, a psychotic disorder not otherwise specified. He noted that Edwards suffered
       from auditory hallucinations. The doctor further noted that Edwards was limited in
       his ability to handle stressful situations. On cross-examination, Dr. Kittrell testified
       that in his report he had opined that Edwards’s psychotic disorder did not render
       Edwards unable to appreciate the criminality of his conduct and did not render him
       unable to conform his conduct to the requirements of the law.

Edwards, 2015 Ark. 377, at 2–4, 472 S.W.3d at 481–82.

       Following the disposition of his direct appeal, appellant filed a petition for

postconviction relief in the trial court. In the petition, appellant alleged that his trial counsel

provided ineffective assistance of counsel by (1) failing to elicit testimony from Dr. Kittrell

regarding whether appellant generally had the capacity to form intent, or alternatively,

failing to argue that ruling such testimony inadmissible violated due process by depriving

appellant of his only defense; (2) not pursuing a self-defense theory of the case; (3) refusing




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to allow appellant to testify on his own behalf;1 and (4) failing to present adequate mitigation

evidence at sentencing. The trial court denied without a hearing as to issues 1, 2, and 4.

The trial court held a hearing on issue 3. Following the hearing, the trial court entered an

order in which it denied the petition on all grounds. This appeal followed.

       In an appeal from a trial court’s denial of a petition under Rule 37.1, the question

presented is whether, based on the totality of the evidence, the trial court clearly erred in

holding that counsel’s performance was not ineffective under the standard set forth in

Strickland v. Washington, 466 U.S. 668 (1984). Jackson v. State, 352 Ark. 359, 105 S.W.3d

352 (2003). 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. Flores v. State, 350 Ark. 198, 85 S.W.3d 896

(2002).

       The Strickland standard is a two-part test. When a convicted defendant complains of

ineffective assistance of counsel, he must show first that counsel’s performance was deficient

through a showing that counsel made errors so serious that counsel was not functioning as

the “counsel” guaranteed the petitioner by the Sixth Amendment. Additionally, the

petitioner must show that the deficient performance prejudiced the defense, which requires

a showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial.

Andrews v. State, 344 Ark. 606, 42 S.W.3d 484 (2001) (per curiam).




       1
           Appellant has abandoned this argument on appeal.


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

reasonable professional assistance. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). 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. Burton v. State, 367 Ark. 109, 238 S.W.3d 111 (2006).

       Appellant first argues that his trial counsel provided ineffective assistance of counsel

by either failing to elicit testimony from Dr. Kittrell regarding his general capacity to form

intent or failing to argue that ruling such testimony inadmissible violated due process by

depriving appellant of his only defense. The sole defense put forth by the defense at trial

was that appellant was not guilty as a result of mental disease or defect. It is an affirmative

defense to a prosecution that at the time the defendant engaged in the conduct charged he

or she lacked capacity as a result of mental disease or defect to conform his or her conduct

to the requirements of law or appreciate the criminality of his or her conduct. Ark. Code

Ann. § 5-2-312(a)(1) (Repl. 2013). Appellant was convicted of first-degree murder, which

requires the defendant to act with purposeful conduct. Ark. Code Ann. § 5-10-102(a)(2)

(Repl. 2013). A person acts purposely with respect to his conduct or as a result of his

conduct when it is his conscious object to engage in conduct of that nature or to cause the

result. Ark. Code Ann. § 5-2-202(1) (Repl. 2013).

       Dr. Kittrell never opined that appellant was unable to either conform his conduct to

the requirements of the law or appreciate the criminality of his conduct. Therefore, as we

noted in our opinion on direct appeal, there was no evidence to support two elements of


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the affirmative defense, nor does appellant argue that counsel was ineffective for failing to

present such evidence or even that such evidence existed. There was also ample evidence

of purposeful conduct submitted at trial, as there was testimony that appellant came into the

bar after a fight with a shotgun, indicated he was looking for the man who had fought with

him, then shot that man twice. The State also submitted surveillance-camera footage of the

incident. As appellant would have been unable to present a successful case on the affirmative

defense regardless of any testimony from Dr. Kittrell regarding his general capacity to form

intent, he has failed to demonstrate that he was prejudiced by counsel’s alleged deficient

performance. We affirm on this point.

       Appellant next argues that his trial counsel was ineffective for failing to present a self-

defense theory of the case. It is undisputed that appellant went into the bar, carrying a

shotgun, looking for the person he fought with earlier, whom he then shot. We have held

that the justification of self-defense is not available to a defendant who arms himself and

goes into a place in anticipation that another will attack him. See Kemp v. State, 348 Ark.

750, 74 S.W.3d 224 (2002); see also Girtman v. State, 285 Ark. 13, 684 S.W.2d 806 (1985).

That is exactly what appellant did. As the justification of self-defense was not available to

appellant, his counsel necessarily did not render ineffective assistance of counsel by failing

to raise the defense.

       Finally, appellant argues that his trial counsel was ineffective for failing to present

sufficient mitigation evidence at sentencing. As stated above, appellant was sentenced to a

total of sixty-five years’ imprisonment. Appellant concedes that he could have received a

maximum sentence of life imprisonment plus fifteen years on the first-degree-murder charge


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and thirty years’ imprisonment on the attempted first-degree-murder charge. Appellant

accordingly concedes that he received less than the maximum sentence.                    He also

acknowledges that we have held that a defendant who is sentenced to less than the maximum

sentence cannot show prejudice from the sentence alone. See State v. Franklin, 351 Ark.

131, 89 S.W.3d 865 (2002) (holding that a defendant could not demonstrate prejudice due

to counsel’s alleged failure to present mitigating evidence during the sentencing phase

because he received less than the maximum sentence). Instead of attempting to demonstrate

prejudice in some other manner, appellant argues that we should not apply our precedent

in his case because he will be in his nineties when he is first eligible for release, resulting in

his being sentenced to a “de facto” life sentence. We decline appellant’s invitation to break

with our established precedent. As appellant has failed to demonstrate prejudice, the denial

of his claim is affirmed.

       Affirmed.

       John Wesley Hall and Sarah M. Pourhosseini, for appellant.

       Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.




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