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                SUPREME COURT OF ARKANSAS
                                      No.   CR-16-804


                                                Opinion Delivered:   April 6, 2017
HEATHER CARLENE SWAIN
                    APPELLANT APPEAL FROM THE WASHINGTON
                              COUNTY CIRCUIT COURT
V.                            [NO. CR-2013-172-1]

STATE OF ARKANSAS                          HONORABLE MARK LINDSAY,
                                  APPELLEE JUDGE
                                                AFFIRMED.



                           RHONDA K. WOOD, Associate Justice

        After a jury trial, Heather Swain was convicted as an accomplice to capital murder

 and kidnapping. She received sentences of life without parole for murder and twenty-five

 years for kidnapping. She now contends that she received ineffective assistance of counsel

 when her defense counsel allowed one of her accomplices to testify in her defense without

 first interviewing him. She also contends that her life sentence was cruel and unusual and

 penalized her right to trial. The circuit court rejected both claims. We affirm the circuit

 court’s judgment on the ineffective assistance of counsel claim. However, we decline to

 address the remaining claims because they are not properly before us.

        Heather Swain was charged as an accomplice to capital murder and kidnapping.

 Testimony at her trial showed that she and three other men kidnapped their victim, beat

 him to death while they drove around in an SUV, and finally left him lying face down in a

 ditch next to a dirt road in rural Washington County. The jury convicted on both charges.
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We subsequently affirmed the conviction on direct review. See Swain v. State, 2015 Ark.

132, 459 S.W.3d 283.

       After we affirmed, Swain filed a petition for postconviction relief under Arkansas

Rule of Criminal Procedure 37. First, Swain argued that defense counsel had been

ineffective by allowing one of her accomplices to testify in her defense without first

interviewing him. Second, Swain argued that her sentence of life imprisonment for capital

murder was disproportionate to the crime charged and was actually a penalty for exercising

her right to trial. This second argument was based on her accomplices’ receiving lower

sentences after pleading guilty. After holding a hearing, the circuit court rejected Swain’s

petition by written order. Swain has now filed this appeal.

       We do not reverse the grant or denial of postconviction relief unless the circuit

court’s findings are clearly erroneous. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883. 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. State v. Lacy, 2016 Ark. 38, 480 S.W.3d 856.

       The first issue involves defense counsel’s decision to call one of Swain’s accomplices

to testify. On cross-examination by the State, this accomplice, Alan Swinford, testified that

Swain had slapped the victim and instigated her accomplices to further violence. Swain

alleged in her petition that her counsel should have never allowed Swinford to testify

without first interviewing him.

       Defense counsel testified to rebut this charge at the Rule 37 hearing. He admitted

that he did not interview Swinford before trial because Swinford’s attorneys had indicated


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that he did not want to talk. However, counsel did have access to five transcripts of previous

interviews Swinford had given. None of these contained the allegation that Swain had

physically touched the victim. Counsel maintained that the decision to call Swinford

originated with Swain. Even so, counsel thought Swinford’s testimony would be “helpful

to us in pointing out who did what and what her role was compared to his.” The circuit

court concluded that counsel’s decision to call Swinford was based on trial strategy.

       Under the two-prong standard from Strickland v. Washington, 466 U.S. 668 (1984), a

petitioner seeking postconviction relief must show that his counsel’s performance was

deficient and that the deficient performance resulted in prejudice. See Feuget v. State, 2015

Ark. 43, 454 S.W.3d 734. “There is a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance, and the petitioner 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. at 4, 454 S.W.3d at 738. “Matters of trial strategy

and tactics, even if arguably improvident, fall within the realm of counsel’s professional

judgment and are not grounds for a finding of ineffective assistance of counsel.” Noel v.

State, 342 Ark. 35, 41, 26 S.W.3d 123, 127 (2000). A matter of reasonable trial strategy does

not constitute deficient performance. Fukunaga v. State, 2016 Ark. 164, 489 S.W.3d 644.

       On appeal, Swain argues that defense counsel’s calling Swinford without

interviewing him, hoping that he would exculpate Swain, was a “random stab in the dark”

rather than a coherent trial strategy. This argument misses the mark. Counsel never testified

that Swinford would exculpate Swain. Rather, his testimony merely indicated that calling


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Swinford could put Swain’s participation in perspective; it could highlight that Swinford,

rather than Swain, was the primary aggressor. Counsel testified, “I wanted to show them

what really caused the death and remind [the jury] that she was . . . fairly helpless against

[Swinford].” Indeed, during direct examination, Swinford testified that he had been

drinking and using drugs; that he blamed the victim for his wife’s death; and that he had

been the first one to physically assault the victim.

       We cannot say that the circuit court clearly erred when it concluded that counsel’s

decision was reasonable trial strategy. Even though another attorney may have chosen a

different course, trial strategy, even if it proves unsuccessful, is a matter of professional

judgment. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. The decision whether to call

particular witnesses is a matter of trial strategy that is outside the purview of Rule 37. Id.

Trial counsel must use his or her best judgment to determine which witnesses will be

beneficial to the client. Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984). Accordingly,

we affirm on this point.

       The next issue involves Swain’s claim that her sentence of life imprisonment was

disproportionate and unduly penalized her right to a jury trial. The premise for this argument

is that Swain’s accomplices, who all pleaded guilty to first-degree murder and kidnapping,

received lesser sentences: Alan Swinford received 80 years; Timothy Swinford received 50

years; and James Patton received 30 years. Swain maintains that these accomplices were

more culpable than her and that she should not have received a longer sentence. She also

maintains that she received a more “onerous” sentence because, unlike her accomplices, she




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chose to exercise her right to a jury trial. Neither of these arguments of trial error were

raised at trial or on direct appeal.

       We cannot address these issues now and summarily affirm. “Rule 37 is not available

as a direct challenge to the admissibility of evidence or to raise questions of trial error.

Questions of constitutional dimension must even be raised in the trial court in accordance

with the controlling rules of procedure, or else the issues are waived, unless they are so

fundamental as to void the judgment absolutely.” Finley v. State, 295 Ark. 357, 362–63, 748

S.W.2d 643, 646 (1988). The issue in Finley was a speedy-trial claim based on an alleged

violation of the Interstate Agreement on Detainers Act. We held that such a violation “did

not involve the waiver of such a fundamental right that would void a judgment.” Id. at 363,

748 S.W.2d at 646.

       We addressed this issue again in Collins v. State, 324 Ark. 322, 920 S.W.2d 846

(1996). There, we reaffirmed the rule from Finley, stating that “constitutional issues must be

raised in the trial court and on direct appeal, rather than in Rule 37 proceedings.” Id. at

326, 920 S.W.2d at 848. However, we noted an exception for “errors that are so

fundamental as to render the judgment of conviction void and subject to collateral attack.”

Id. We subsequently found that the right to trial by a twelve-member jury was fundamental

and that the issue could be raised for the first time in Rule 37 proceedings. Id.; see also

Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000) (holding that double-jeopardy

protection is a fundamental right and could be raised for the first time in a Rule 37 petition).

       Because Swain failed to raise these issues at trial, she must show there is a fundamental

error in order for us to address them here. Swain asserts, but does not develop, the argument


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that her disproportionate sentence relative to her accomplices constitutes a fundamental

error and that it penalized her for failing to enter a plea. We hold that the facts presented

here do not involve a fundamental error. We have held that “we will not reduce or compare

sentences that are imposed within the statutory limits.” Philyaw v. Kelley, 2015 Ark. 465, at

8, 477 S.W.3d 503, 507. When Swain chose to exercise her right to jury trial, the only

sentence available upon a finding of guilt was the one imposed.1 Further, “what sentence

another defendant has received is not relevant evidence as to guilt, innocence, or

punishment.” Bradley v. State, 2013 Ark. 58, at 15, 426 S.W.3d 363, 372 (citing Robinson v.

State, 278 Ark. 516, 517, 648 S.W.2d 444, 444 (1983)). Because the error Swain asserts is

not fundamental in nature, she cannot raise the argument for the first time in a Rule 37

proceeding.

       Affirmed.

       Jeff Rosenzweig, for appellant.

       Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.




       1
        Capital murder is punishable by either death or life in prison without parole. Ark.
Code Ann. § 5-10-101(c)(1) (Supp. 2011). The State waived the death penalty, so Swain
received the only sentence allowable by statute.

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