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                 SUPREME COURT OF ARKANSAS
                                       No.   CR-16-36

                                                   Opinion Delivered: December   8, 2016
EDWARD ANTHONY LIGGINS
                   APPELLANT

V.                                                 APPEAL FROM THE CRAIGHEAD
                                                   COUNTY CIRCUIT COURT
STATE OF ARKANSAS                                  [NO. CR-2009-1147]
                                   APPELLEE
                                                   HONORABLE CINDY THYER,
                                                   JUDGE

                                                   AFFIRMED.


                              HOWARD W. BRILL, Chief Justice


        Appellant Edward Anthony Liggins appeals an order of the Craighead County

 Circuit Court denying his petition for postconviction relief. For reversal, Liggins argues

 that the circuit court erred in denying his ineffective-assistance claims (1) that appellate

 counsel failed to appeal improper victim-impact testimony and an illegal sentence and (2)

 that trial counsel failed to meet with him, provide copies of discovery, and communicate

 about his case. We affirm the circuit court’s order.

                                             I. Facts

        On August 5, 2010, a Craighead County jury convicted Liggins of first-degree

 murder of Tyrina Cornwell and first-degree battery of Germany Warren. The circuit court

 sentenced Liggins to forty years’ imprisonment for the murder conviction with an

 enhancement of fifteen years for using a firearm in the commission of a crime and an

 additional enhancement of ten years’ imprisonment for committing the crime in the

 presence of a child. His sentence and enhancements, which were to run consecutively,
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totaled an aggregate sentence of sixty-five years’ imprisonment. Liggins also received a

twenty-year sentence for the battery conviction to run concurrently with the sixty-five-year

sentence. Liggins appealed, and the court of appeals appointed new appellate counsel. See

Liggins v. State, 2014 Ark. App. 671. The court of appeals affirmed. See Liggins v. State,

2015 Ark. App. 321, 463 S.W.3d 331. Liggins filed a petition for postconviction relief

pursuant to Arkansas Rule of Civil Procedure 37.1, in which he asserted numerous claims

of ineffective assistance of counsel. After a two-day hearing, the circuit court denied

Liggins’s petition. He timely filed a notice of appeal and now raises the following arguments

before this court.

                                     II. Rule 37 Appeal

       On appeal, Liggins argues that the circuit court erred by denying his Rule 37 claims

that both appellate and trial counsel provided ineffective assistance. This court does not

reverse a denial of postconviction relief unless the circuit court’s findings are clearly

erroneous. E.g., Prater v. State, 2012 Ark. 164, 402 S.W.3d 68. A finding is clearly

erroneous when, although there is evidence to support it, after reviewing the entire

evidence, we are left with the definite and firm conviction that a mistake has been

committed. Id., 402 S.W.3d 68.

       The criteria for assessing the effectiveness of counsel were enunciated by the Supreme

Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984). To 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. E.g.,

Kemp v. State, 347 Ark. 52, 60 S.W.3d 404 (2001).


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       Under the performance prong of the Strickland test, the petitioner must show that

counsel’s performance was deficient. E.g., Doty v. State, 2016 Ark. 341, ___ S.W.3d ___.

This factor requires a showing that trial 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.    Id., ___ S.W.3d ___. The courts acknowledge a strong

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

assistance. Id., ___ S.W.3d ___. Accordingly, the petitioner has the burden of overcoming

this presumption by identifying specific acts or 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., ___ S.W.3d ___.

       Under the prejudice prong of Strickland, even if counsel’s conduct is shown to be

professionally unreasonable, the judgment will stand unless the petitioner can demonstrate

that the error had an actual prejudicial effect on the outcome of the proceeding. E.g., Luper

v. State, 2016 Ark. 371, ___ S.W.3d ___.          The petitioner must show “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 3, ___ S.W.3d at ___ (quoting Strickland, 466 U.S. at 694). A

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

the trial. E.g., Taylor v. State, 2015 Ark. 339, 470 S.W.3d 271.

       “Failure to make the required showing of either deficient performance or sufficient

prejudice defeats the ineffectiveness claim.” Strickland, 466 U.S. at 700. Accordingly, we

need not address the Strickland components in a particular order or even address both

components of the inquiry if the petitioner makes an insufficient showing on one. See


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Strickland, 466 U.S. at 697. The Court has stated that “[i]f it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will

often be so, that course should be followed.” Id.

                                    A. Appellate Counsel

       We first address Liggins’s two claims concerning the ineffective assistance of his

appellate counsel. Liggins contends that the circuit court erred in denying his claim that

appellate counsel was ineffective for failing to argue that a victim-impact witness improperly

recommended to the jury that Liggins receive the maximum sentence of life without parole.

       The victim’s mother, Catherine Amiths, testified during the sentencing phase of

Liggins’s trial and stated, “It’ll never go away. And I just feel like he should have to go

through . . . he deserves a life without parole.” Liggins’s trial counsel moved for a mistrial.

The circuit court denied the motion and instructed the jury that “any recommendation of

family members as to a sentence of the defendant is improper and is not be considered by

you in determining the sentence of the defendant.” Liggins later asserted in his Rule 37

petition that his appellate counsel failed to raise the victim-impact issue on appeal. The

circuit court ruled that

       [a]fter hearing all of the evidence relating to sentencing, the jury recommended that
       the petitioner receive a term of years rather than a life sentence, and the court
       sentenced him accordingly. . . . As such, no prejudice can be demonstrated by the
       petitioner in this regard. Without a demonstration of prejudice, petitioner’s claim
       must fail.

       On appeal, Liggins argues that Miller v. State, 2010 Ark. 1, 362 S.W.3d 264, a death-

penalty case, supports his contention. In Miller, this court held that it was not proper for

witnesses to tell the jury what the appropriate penalty should be, stating that “penalty


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recommendations from family members of the victim are not relevant as victim-impact

evidence.” Id. at 32, 362 S.W.3d at 285 (quoting Greene v. State, 343 Ark. 526, 535, 37

S.W.3d 579, 586 (2001)). Such testimony would interfere with and be irrelevant to a jury’s

decision on punishment. Id., 362 S.W.3d 264. Here, Liggins’s case is distinguishable

because he did not receive a death sentence, and this court has stated that death is different.

See, e.g., State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999).

       Moreover, it is unnecessary to discuss appellate counsel’s performance regarding the

victim-impact issue because Liggins did not establish that he was prejudiced. Pursuant to

Arkansas Code Annotated section 5-4-603(c) (Supp. 2013), the maximum sentence to

which Liggins could have been sentenced for his murder conviction was life without parole,

but Liggins received a sentence of forty years’ imprisonment for that conviction. Because

the jury did not impose the greater sentence, the victim-impact testimony was not

prejudicial. Thus, we hold that the circuit court properly concluded that Liggins failed to

demonstrate prejudice such that the outcome of his trial would have been different.

Accordingly, we affirm the circuit court’s ruling because Liggins cannot satisfy the second

prong of Strickland and any discussion of the first Strickland prong is unnecessary.

       Next, Liggins asserts that the circuit court erred in denying his claim that appellate

counsel was ineffective for failing to argue that Liggins received an illegal sentence.

According to Liggins, Arkansas Code Annotated sections 5-1-103 and 5-4-104 prohibit a

sentence enhancement for his murder conviction.

       Pursuant to Arkansas Code Annotated section 16-90-120 (Repl. 2016), Liggins

received an enhanced sentence of fifteen years’ imprisonment for possessing a firearm during


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the commission of first-degree murder. In Williams v. State, 364 Ark. 203, 217 S.W.3d 817

(2005), we held that sections 5-4-104(a) and 16-90-120(a)–(b) could be read harmoniously

to mean that section 16-90-120(a)–(b) was only a sentence enhancement, while the Arkansas

criminal code provides the minimum sentences to be imposed for each specific offense.

Thus, in light of our Williams holding, we conclude that Liggins’s appellate counsel was not

ineffective, and we affirm.

                                      B. Trial Counsel

       We also address Liggins’s ineffective-assistance claims concerning his trial counsel.

Liggins asserts that his trial counsel was ineffective because he met with him only three hours

before the trial; that he failed to provide copies of discovery; and that he failed to

communicate with him about the case.

       Liggins raised these ineffective-assistance claims in a motion for new trial before the

circuit court. This court has stated that a motion for new trial, which raised some claims of

ineffective assistance of counsel, does not preclude the petitioner from later filing a Rule 37

petition if the claims are being raised for the first time. Huddleston v. State, 347 Ark. 226,

61 S.W.3d 163 (2001) (per curiam). Claims of ineffective assistance raised in a new-trial

motion are settled by the circuit court; however, claims not raised in the motion for new

trial are proper in Rule 37 proceedings. Id., 61 S.W.3d 163.

       Here, the circuit court ruled on these claims when it denied Liggins’s motion for

new trial. The circuit court found “the testimony of Mr. DeProw [Liggins’s attorney] to

be credible and [found] the testimony of the defendant not to be credible.” The circuit

court stated that “counsel engaged in appropriate and meaningful discovery, . . . appeared


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in court with the defendant on several occasions; and met with the defendant on numerous

occasions.” The circuit court further stated that Liggins

       did not agree with everything his counsel did or said on his behalf, but there is no
       showing . . . that any decisions or actions . . . fell below an objective standard of
       reasonableness . . . [or] that the outcome of the trial would have been different
       especially considering the overwhelming evidence of [Liggins’s] guilt submitted at
       trial.

Because the circuit court previously ruled on these issues in its order denying Liggins’s

motion for new trial, we are precluded from doing so on appeal. See Huddleston, 347 Ark.

226, 61 S.W.3d 163.

       Affirmed.

       Alvin L. Simes, P.A., by: Alvin L. Simes, for appellant.

       Leslie Rutledge, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee




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