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                   SUPREME COURT OF ARKANSAS.
                                       No.   CR-14-447


 LARRY EUGENE WALDEN           Opinion Delivered September 15, 2016
                    APPELLANT
                               APPEAL FROM THE SEBASTIAN
V.                             COUNTY CIRCUIT COURT, FORT
                               SMITH DISTRICT
 STATE OF ARKANSAS             [NO. 66CR-09-676]
                      APPELLEE
                               HONORABLE J. MICHAEL FITZHUGH, JUDGE

                                                 AFFIRMED.

                                       PER CURIAM


        In 2011, appellant Larry Eugene Walden was found guilty by a jury of aggravated

 robbery and sentenced as a habitual offender to 720 months’ imprisonment. The Arkansas

 Court of Appeals affirmed. Walden v. State, 2012 Ark. App. 307, 419 S.W.3d 739.

        Walden subsequently filed in the trial court a timely, verified petition for

 postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). The

 petition was denied, and Walden appealed to this court. We reversed the order and

 remanded the matter to the trial court for entry of an order that complied with Rule 37.3(a).

 Walden v. State, 2014 Ark. 10 (per curiam).

        On remand, the trial court held a hearing on the petition and again denied

 postconviction relief. Walden brings this appeal. Any issues that were argued below, but

 not raised in this appeal, are considered abandoned. Williams v. State, 2011 Ark. 489, 385

 S.W.3d 228.
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       Walden’s Rule 37.1 petition was based on numerous claims that his trial attorney,

Timothy Sharum, was ineffective, all of which the trial court rejected. We find no error

and affirm the order.

       This court will not reverse the trial court’s decision granting or denying

postconviction relief unless it is clearly erroneous. Kemp v. State, 347 Ark. 52, 55, 60 S.W.3d

404, 406 (2001). 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. 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 the totality of the evidence under the standard set

forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104

(1984), the trial court clearly erred in holding that counsel’s performance was not ineffective.

Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29. Under the two-prong standard outlined in

Strickland, 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. Adkins v. State, 2015 Ark. 336, 469 S.W.3d 790. The reviewing court must

indulge in a strong presumption that trial counsel’s conduct falls within the wide range of

reasonable professional assistance. Id. The petitioner claiming ineffective assistance of

counsel 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. Id. The second

prong requires a petitioner to show that counsel’s deficient performance so prejudiced his

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defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d

462. Consequently, the petitioner must show 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. 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. Houghton v. State, 2015 Ark. 252, 464 S.W.3d 922. Finally,

conclusory statements that counsel was ineffective cannot be the basis for postconviction

relief. Id.; Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783.

       The charge of aggravated robbery against Walden arose from an incident at a bank

in Fort Smith in 2009 in which Walden handed a teller a bag with a note that said, “This is

a robbery. I have a gun. Give me all your money, no red dye pack.” The teller testified

that she took money from her till and placed it in the bag because of Walden’s “menacing

scowl” and the implied threat to her life. Prior to instruction of the jury by the trial court,

Walden requested an instruction on the lesser-included offense of robbery. The trial court

declined to give the instruction on robbery. On direct appeal, the court of appeals did not

reach the trial court’s decision to deny the instruction on the lesser-included offense of

robbery because Walden did not proffer the instruction. Walden, 2012 Ark. App. 307, 419

S.W.3d 739.

       Walden alleged in his Rule 37.1 petition that the failure of his counsel, Sharum, to

proffer the instruction amounted to ineffective assistance of counsel because the instruction

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was warranted and because the court of appeals would have reversed the judgment had the

proffer been given. The trial court held in its order that counsel was not ineffective because

Walden was not entitled to the instruction on the ground that the evidence that Walden

had committed aggravated robbery was conclusive; therefore, there was no requirement that

the jury be instructed on mere robbery.

       We agree. We need not reiterate the discussion by the court of appeals in its decision

finding that Walden’s conduct satisfied the elements of aggravated robbery as defined by

Arkansas Code Annotated section 5-12-103 (Repl. 2006). Walden, 2012 Ark. App. 307, at

6–7, 419 S.W.3d at 743. As there was substantial evidence that Walden committed

aggravated robbery, he did not establish that there is a reasonable probability that the

outcome of his trial would have been different had the lesser-included-offense instruction

been given or that the court of appeals would have reversed the judgment had there been a

proffer of the instruction. See Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510 (holding that

when the evidence adduced at trial was conclusive to show that aggravated robbery was

committed, the trial court was not required to administer a jury instruction on the lesser-

included offense of ordinary robbery).

       Walden’s next point for reversal of the trial court’s order pertains to his having been

convicted as a habitual offender at the Arkansas trial based on his prior convictions in federal

court in Oklahoma of three counts of robbery. Walden contended in his Rule 37.1 petition,

as he does in this appeal, that Sharum was ineffective on the ground that Sharum, before

Walden was tried for aggravated robbery in Arkansas, erred in advising him to plead guilty




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to the three robbery counts in federal court in Oklahoma and thus caused him to be

sentenced as a habitual offender in Arkansas.

         The trial court noted in its order that Sharum had no authority to advise Walden on

his pending federal charges,1 that Sharum testified at the hearing that he had told Walden to

listen to his attorney in the federal court proceedings, and that Walden admitted at the Rule

37.1 hearing that Sharum had not expressly advised him to plead guilty in federal court.

Rather, Walden contended at the hearing that Sharum was remiss by not communicating

with him about the federal court pleas and that he should have “stepped in and done

something about it,” and faulted Sharum for not advising him “in any way, shape, or form.”

It appears that Walden’s allegations concerning Sharum’s conduct with respect to the federal

court pleas was founded on the erroneous assumption that Sharum had an obligation to

advise him about the federal court pleas because those pleas might affect his status as a

habitual offender in his Arkansas trial. If so, he did not demonstrate that Sharum had such

a duty or that he was remiss within the bounds of Strickland in the Arkansas proceedings by

not advising him on the federal charges.

         Next, Walden argues that Sharum erred by resting the defense case without

permitting him to testify on his own behalf. The Supreme Court of the United States has

held that a criminal defendant has a right to testify on his own behalf if he chooses to do so.

Rock v. Arkansas, 483 U.S. 44 (1987). Counsel may only advise the accused in making the

decision. Sartin v. State, 2012 Ark. 155, at 7–8, 400 S.W.3d 694, 699–700; Chenowith v.




1   Walden was represented by counsel in the federal court proceedings.
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State, 341 Ark. 722, 19 S.W.3d 612 (2000) (per curiam). This court has consistently held,

however, that the mere fact that a defendant did not testify is not, in and of itself, a basis for

postconviction relief. See, e.g., Dansby v. State, 347 Ark. 674, 66 S.W.3d 585 (2002).

Ordinarily, counsel’s advice to the defendant not to testify is simply a matter of trial strategy.

Williams v. State, 2011 Ark. 489, at 12, 385 S.W.3d 228, 237; Chenowith, 341 Ark. at 734,

19 S.W.3d at 618. The lack of success with trial tactics in obtaining an acquittal does not

equate with ineffective assistance of counsel. O'Rourke v. State, 298 Ark. 144, 154, 765

S.W.2d 916, 922 (1989); see also Fink v. State, 280 Ark. 281, 658 S.W.2d 359 (1983).

       Timothy Sharum testified at the evidentiary hearing that he had discussed with

Walden before trial whether he should testify. Sharum further testified that, after observing

Walden testify at a pretrial hearing, he made the strategic decision to advise Walden not to

testify at trial. Counsel also feared that cross-examination of Walden by the State concerning

the three prior robbery convictions in federal court would have been detrimental to the

defense.

       Sharum further said that he asked the court at the close of the defense case for a

moment to confer with Walden. He asked Walden at that time if he wished to take the

stand, and Walden confirmed that he did not. Another attorney, Christina Scherrey, who

sat with Sharum at the defense table, also testified at the hearing. She confirmed that Sharum

had asked Walden at the close of the defense case if he wished to testify and informed

Walden that “[t]his is the point that you can testify or not testify,” and that Walden declined

to take the stand.




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       The record on direct appeal does not reflect that Walden ever informed the court on

the record that he desired to testify. We have held that, when a defendant remains silent

even though he desires to testify, the defendant knowingly and voluntarily waives his right

to testify. Sartin, 2012 Ark. 155, at 9, 400 S.W.3d at 700. While it clear that the right to

testify is a fundamental right that may only be exercised by the defendant, neither this court

nor the Supreme Court of the United States has held that a record must be made evincing

a defendant’s waiver of his right to testify and that failure of counsel to have his client make

the declaration on the record does not constitute ineffective assistance of counsel. Id.

       It should also be noted that the petitioner in a Rule 37.1 proceeding claiming

ineffective assistance of counsel for failure of counsel to secure the petitioner’s testimony at

trial must make a showing that he expressed his desire to testify to counsel and that his failure

to testify prejudiced the defense. See State v. Franklin, 351 Ark. 131, 137, 89 S.W.3d 865,

868 (2002). To establish prejudice, the defendant must state specifically what his testimony

would have been. See id.; see also Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985). Here,

there was little showing of what Walden’s testimony would have been had he testified

beyond vague statements that Walden would have given the jury the whole story of the

incident. He clearly made no showing of prejudice caused by ineffective assistance of

counsel that would warrant vacating the judgment in his case under Strickland. See Franklin,

351 Ark. 131, 89 S.W.3d 865.

       Walden further contends on appeal that the trial court erred in finding that counsel

was not remiss in failing to object to the prosecution’s introduction into evidence of a

photograph taken by a security camera at the bank. Walden contended in his Rule 37.1

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petition that the photograph constituted a “known misrepresentation of the evidence” by

the prosecutor because the prosecutor said that it showed Walden lunging at the bank teller

when he had in fact just handed her the bag and the note.

       The trial court in its order stated that the trial transcript did not reflect that the

prosecutor made such a statement, but, in any event, the claim was one of prosecutorial

misconduct and such claims are not cognizable in a Rule 37.1 proceeding. Walden argues

that the trial court was wrong not to address the claim as one of ineffective assistance of

counsel.

       In its brief, the appellee states that the trial transcript does not contain a statement by

the prosecutor about Walden’s “lunging” or any synonym for the word that would suggest

that the State contended that Walden moved toward the teller. At the Rule 37.1 hearing,

the court offered Walden the opportunity to read a copy of the partial trial record that the

prosecutor brought to the hearing to locate the statement, but he declined to do so.

       We take judicial notice that the trial transcript lodged on direct appeal is consolidated

into the record for this postconviction appeal. Green v. State, 2014 Ark. 284, at 2 (per

curiam) (citing Drymon v. State, 327 Ark. 375, 938 S.W.2d 825 (1997) (per curiam) (holding

that the direct-appeal record is automatically considered to be consolidated with the

postconviction-appeal record)).      There is no reference in the prosecutor’s opening

statement, closing argument, or in the examination of the teller to Walden’s moving

threateningly toward the teller. Accordingly, Walden did not state facts to establish that

there was any cause for counsel to object to any photograph or the prosecutor’s comments

on any photograph. It is well settled that counsel cannot be considered ineffective for failing

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to make an objection or an argument that is without merit. Watson v. State, 2014 Ark. 203,

at 8, 444 S.W.3d 835, 841; Anthony v. State, 2014 Ark. 195, at 15 (per curiam).

       Without providing any particular argument concerning the point, Walden alleges

that counsel should have objected to the bank teller’s testimony that he had a “menacing

look” during the crime. As the court noted in its order, counsel questioned the teller

concerning Walden’s expression, and she conceded that the expression could have been

interpreted as a “blank stare.” Walden argues that counsel should have further challenged

the witness’s testimony on the ground that she could not have seen a blank stare because he

was wearing sunglasses at the time.

       We recognize that the cross-examination of witnesses is a largely subjective issue

about which seasoned advocates could disagree. McNichols v. State, 2014 Ark. 462, at 8, 448

S.W.3d 200, 206 (per curiam). An approach in examining a witness that may prove effective

in one instance may fail entirely in another, and counsel is allowed great leeway in making

strategic and tactical decisions concerning which questions to ask. Robinson v. State, 2014

Ark. 310, 439 S.W.3d 32 (per curiam). Here, there was evidence that Walden threatened

the teller with the assertion that he was armed with a gun. Under the circumstances, and

considering the totality of the evidence, as a court must do under Strickland, we cannot say

that Walden made a showing of ineffective assistance of counsel.

       Moreover, to the extent that the allegation was intended as a claim that the evidence

did not show that the teller felt threatened by Walden’s conduct, the allegation was

essentially an assertion that the evidence was not sufficient to sustain the judgment that he

committed an aggravated robbery. Rule 37.1, however, does not provide a means to

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challenge the sufficiency of the evidence merely because the petitioner has raised the

challenge in the guise of an allegation of ineffective assistance of counsel. Nickelson v. State,

2013 Ark. 252, at 4–5 (per curiam).

       Walden also asks that the trial court’s order be reversed on the ground that counsel

“labored under a conflict of interest.” As support for the claim, Walden in his Rule 37.1

petition and in his brief in this appeal lists the allegations of ineffective assistance of counsel

contained in the petition as a whole. The allegations include the following “conflicts”:

counsel did not move for dismissal of the charge against him on the basis of a speedy-trial

violation; counsel waived his right to testify in his own behalf; counsel advised him to plead

guilty to the charges pending against him in federal court; counsel failed to proffer a jury

instruction on robbery as a lesser-included offense to aggravated robbery; counsel failed to

object to the prosecutor’s introduction of a photograph that was described as showing him

“lunging” at the teller; counsel failed to challenge the teller’s testimony that he stared at her

blankly because he was wearing sunglasses, and she could not have seen his eyes. None of

the claims constituted a showing of a conflict of interest that merited postconviction relief

under Rule 37.1.

       An actual conflict of interest generally requires proof that counsel “actively

represented conflicting interests” of third parties. Townsend v. State, 350 Ark. 129, at 134,

85 S.W.3d 526, 528 (2002). The allegations raised by Walden point to no evidence in the

record of an actual conflict in that he merely recites allegations of ineffective assistance of

counsel that are without merit, and he does not offer any facts to suggest, much less establish,

a true conflict of interest. See Nelson v. State, 2014 Ark. 28 (per curiam) (holding that

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prejudice arising from a conflict of interest is presumed only when counsel actively

represents conflicting interests, and an actual conflict adversely affects counsel’s

performance).

       We have held that, in the absence of an actual conflict, a petitioner alleging that

counsel's performance was deficient due to another form of conflict must demonstrate a

reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. Id. (citing Mickens v. Taylor, 535 U.S. 162 (2002)).

Rather than support a claim of an actual conflict of interest, Walden’s assertions are at most

claims that his relationship with counsel was not productive in that he was found guilty of

aggravated robbery. The mere fact that the trial resulted in a conviction, however, is not a

proper gauge to determine counsel’s competency. Fink v. State, 280 Ark. 281, at 284, 658

S.W.2d 359, 360 (1983).        The Sixth Amendment does not guarantee a meaningful

relationship between an accused and his counsel that results in a successful defense. See Morris

v. Slappy, 461 U.S. 1, 14 (1983).

       Finally, Walden argues at length that he was entitled to appointment of counsel to

represent him at the Rule 37.1 hearing. As support for the argument, he cites Martinez v.

Ryan, 566 U.S. ___, 132 S. Ct. 1309 (2012), and other precedent that he contends

establishes his absolute right to appointment of counsel. While the trial court has the

discretion to appoint counsel under Rule 37.3(b), we have rejected the argument that

Martinez and other precedent mandates appointment of counsel for every Rule 37.1 hearing.

Mancia v. State, 2015 Ark. 115, at 26, 459 S.W.3d 259, 275. Postconviction matters are

considered civil in nature, and there is no absolute right to counsel. Stalnaker v. State, 2015

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Ark. 250, at 10, 464 S.W.3d 466, 472 (per curiam); McCuen v. State, 328 Ark. 46, 56, 941

S.W.2d 397, 402 (1997).

      In order to demonstrate an abuse of discretion by the trial court in declining to

appoint counsel, an appellant must make some substantial showing that his petition included

a meritorious claim. Chunestudy v. State, 2014 Ark. 345, at 9, 438 S.W.3d 923, 930 (per

curiam). Our review of the Rule 37.1 proceeding in this appeal establishes that Walden did

not make that showing.

      Affirmed.

      Larry E. Walden, pro se appellant.

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




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