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                   SUPREME COURT OF ARKANSAS
                                          No.   CR-11-1009

ROBERT JOSEPH MOTEN                                  Opinion Delivered December   5, 2013
                                 APPELLANT
                                                     PRO SE APPEAL FROM THE
V.                                                   ARKANSAS COUNTY CIRCUIT
                                                     COURT, NORTHERN DISTRICT,
                                                     [NO. 01CR-07-109]
STATE OF ARKANSAS
                                   APPELLEE          HONORABLE DAVID G. HENRY,
                                                     JUDGE

                                                     AFFIRMED.


                                           PER CURIAM


       In 2010, appellant Robert Joseph Moten was found guilty in a trial to the bench of first-

and second-degree battery in the stabbing and cutting injuries of Iesha Timmons and Curtis

Abrams. He was sentenced to an aggregate term of 264 months’ imprisonment. The Arkansas

Court of Appeals affirmed.1 Moten v. State, 2011 Ark. App. 417. Appellant subsequently filed

in the circuit court a timely, verified pro se petition for postconviction relief pursuant to

Arkansas Rule of Criminal Procedure 37.1 (2010). The circuit court denied appellant’s petition

without a hearing, and appellant now brings this appeal. Our jurisdiction is pursuant to Rule 37

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

       On appeal, appellant argues that the circuit court erred in denying relief on his claims that

counsel was ineffective in failing to challenge the validity of the arrest warrant and

corresponding affidavit for arrest, failing to subpoena and question witnesses, and failing to file

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        Appellant’s sole point on appeal was that he was denied the right to a trial by jury; however,
the court of appeals found that appellant knowingly, intelligently, and voluntarily waived that right.
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a motion to dismiss on the ground of a speedy-trial violation; that the circuit court erred in

denying relief on his claims of constitutional error; and that the circuit court did not make the

requisite findings of fact and conclusions of law as required by Arkansas Rule of Criminal

Procedure 37.3. This court does not reverse a decision granting or denying postconviction relief

unless the circuit court’s findings are clearly erroneous. Banks v. State, 2013 Ark. 147. 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. Hickey v. State, 2013 Ark. 237, ___ S.W.3d ___ (per curiam). We find no error

in the circuit court’s order denying postconviction relief and affirm on all points.

       We first address appellant’s contention that the circuit court’s order fails to comply with

Arkansas Rule of Criminal Procedure 37.3. Rule 37.3(c) provides that an evidentiary hearing

should be held in postconviction proceedings unless the files and the record of the case

conclusively show that the petitioner is entitled to no relief. When it dismisses a Rule 37.1

petition without an evidentiary hearing, the circuit court “shall make written findings to that

effect, specifying any parts of the files, or records that are relied upon to sustain the court’s

findings.” Ark. R. Crim. P. 37.3(a). Because it is apparent from the order that the circuit court

examined the record, found appellant’s claims to be without merit, and entered written findings

of fact to that effect, we cannot say that the circuit court erred in denying appellant’s petition

without a hearing.

       Turning to appellant’s points on appeal concerning his claims of ineffective assistance

of counsel, we note that the sole question presented in an appeal from a circuit court’s denial



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of a petition for postconviction relief under Rule 37.1 is whether, based on the totality of the

evidence, the circuit 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). Hickey, 2013 Ark.

237. Under the two-prong Strickland test, a petitioner raising a claim of ineffective assistance of

counsel must first 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. Id. A petitioner making an ineffective-assistance-of-counsel claim must show that

counsel’s performance fell below an objective standard of reasonableness. Dansby v. State, 347

Ark. 674, 66 S.W.3d 585 (2002). In doing so, the claimant must overcome a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance. State v.

Harrison, 2012 Ark. 198, 404 S.W.3d 830.

       With respect to the second prong of the test, the petitioner must show that counsel’s

deficient performance so prejudiced petitioner’s defense that he or she was deprived of a fair

trial. Holloway v. State, 2013 Ark. 140, ___ S.W.3d ___. Such a showing requires that the

petitioner demonstrate a reasonable probability that the fact-finder’s decision would have been

different absent counsel’s errors. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam).

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. Springs v. State, 2012 Ark. 87, 387 S.W.3d

143. Unless a petitioner makes both showings, it cannot be said that the conviction resulted

from a breakdown in the adversarial process rendering the result unreliable. Id. There is no



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reason for a court deciding an ineffective-assistance-of-counsel claim to address both

components of the Strickland standard if the appellant makes an insufficient showing on one of

the prongs. Id. (citing Strickland, 466 U.S. at 697).

       As his first point on appeal, appellant argues that the circuit court erred in denying relief

on his claim that counsel was ineffective in failing to challenge the validity of the arrest warrant

on the ground that it was not supported by probable cause but was based on an affidavit for

arrest containing false and misleading information. Specifically, appellant contends that the

affidavit for arrest was unsigned, unverified, and incomplete. He also asserts that information

contained in the affidavit regarding his possession of a knife is false because, he contends, no

knife was discovered or admitted into evidence and because both victims testified at trial that

they did not see appellant with a knife.

       Generally, a challenge to the validity of an arrest warrant is not cognizable under Rule

37.1. Lewis v. State, 2013 Ark. 105 (per curiam) (citing Gunn v. State, 291 Ark. 548, 726 S.W.2d

278 (1987) (per curiam)). However, counsel’s decision whether to challenge the admission of

evidence seized pursuant to the execution of an arrest warrant is cognizable. Id. A petitioner

who makes such a challenge must demonstrate that a motion to suppress would have been

meritorious had counsel pursued it. Id. In the instant case, though appellant argues on appeal

that his conviction and sentence are the result of an invalid arrest warrant and are, thus, “fruits

of the poisonous tree,” he does not allege that any evidence or statements used at trial were

obtained as a result of the arrest. Rather, appellant’s sole argument is that counsel should have

challenged the validity of the arrest warrant and that, because counsel failed to make such a



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challenge, prejudice ensued.

       A petitioner seeking postconviction relief on a claim of ineffective assistance that is based

on the failure of counsel to make a motion or objection must show that counsel could have

made a successful argument in order to demonstrate the prejudice required under the Strickland

test. Hogan v. State, 2013 Ark. 223 (per curiam) (citing Lowe v. State, 2012 Ark. 185, ___ S.W.3d

___ (per curiam)). Failure to make a meritless objection or motion does not constitute

ineffective assistance of counsel. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). We have

repeatedly held that an illegal arrest, standing alone, does not vitiate a valid conviction. Cook v.

Hobbs, 2011 Ark. 382 (per curiam) (citing Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994)).

Thus, any failure by counsel to challenge the validity of the arrest warrant is immaterial under

Rule 37.1 as the court’s jurisdiction to try appellant did not depend on the validity of his arrest.

Singleton v. State, 256 Ark. 756, 510 S.W.2d 283 (1974). Thus, appellant cannot establish a

reasonable probability that the outcome of the trial would have been different absent counsel’s

failure to challenge the arrest warrant. Accordingly, we cannot say that the circuit court erred

in denying relief on this point.

       Appellant next argues that the circuit court erred in denying relief on his claim that

counsel was ineffective in failing to issue subpoenas to six Stuttgart police officers whose

testimony, he contends, would have shown that a “false arrest occurred by the use of prejudiced

testimony.” The circuit court ruled against appellant on this point, finding that counsel

explained in open court that certain witnesses had not been subpoenaed but that a continuance

would not be requested because appellant had expressed a desire to proceed to trial without



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subpoenaing those witnesses. The circuit court further found that, even if the officers had

testified as appellant contended, the outcome of the trial would not have been different because

appellant’s conviction was based on the testimony of the two victims and of the woman to

whose home appellant went after the incident.

       The objective in reviewing an assertion of ineffective assistance of counsel concerning

the failure to call certain witnesses is to determine whether this failure resulted in actual prejudice

that denied the petitioner a fair trial. Greer v. State, 2012 Ark. 158 (per curiam) (citing Woody v.

State, 2009 Ark. 413 (per curiam)). Where a petitioner alleges ineffective assistance of counsel

concerning the failure to call witnesses, it is incumbent on the petitioner to name the witness,

provide a summary of the testimony, and establish that the testimony would have been

admissible into evidence. Stevenson v. State, 2013 Ark. 302 (per curiam) (citing Hogan, 2013 Ark.

223). The decision to call or not to call a particular witness is largely a matter of professional

judgment. Adams v. State, 2013 Ark. 174, ___ S.W.3d ___. The fact that there was a witness or

witnesses who could have offered beneficial testimony is not, in itself, proof of counsel’s

ineffectiveness. Id. (citing Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000)). In order to

demonstrate prejudice, appellant must establish that there was a reasonable probability that, had

counsel performed further investigation and presented the witness, the outcome of the trial

would have been different. Greer, 2012 Ark. 158.

       Appellant’s argument rests on his contention that the affidavit for arrest contained false

information, namely, that appellant was seen in possession of a knife. As previously noted,

however, any challenge to or testimony concerning the validity of the arrest warrant would have



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had no effect on the outcome of the trial; thus, appellant cannot demonstrate prejudice resulting

from counsel’s failure to subpoena the six police officers. Moreover, the failure to call witnesses

whose testimony would be cumulative to testimony already presented does not deprive the

defense of vital evidence. Williams v. State, 2011 Ark. 489, 385 S.W.3d. 228. Appellant contends

that the six police officers would have testified that appellant was not actually seen in possession

of a knife. This same information was presented through the testimony of the two victims, both

of whom testified that they did not actually see appellant in possession of a knife or any other

cutting instrument. Finally, as the circuit court noted in its order, appellant’s counsel informed

the court prior to proceeding to trial that no witnesses had been subpoenaed and questioned

appellant on the record whether he wished to proceed to trial without subpoenaing witnesses.

Appellant responded that he was comfortable without the witnesses. For these reasons, we find

no error in the circuit court’s order denying relief and affirm on this point.

       As his third point on appeal, appellant argues that the circuit court erred in denying relief

on his claim that counsel was ineffective in failing to file a motion to dismiss based on a speedy-

trial violation. In denying appellant’s claim, the circuit court found that a motion to dismiss

would have been meritless because the delays in the case were the result of continuances

requested by the defense and because of appellant’s failure to appear for a scheduled trial date.

       Failure to make a meritless objection or motion does not constitute ineffective assistance

of counsel. Greene, 356 Ark. 59, 146 S.W.3d 871. Under the speedy-trial rule, if a criminal

defendant is not brought to trial within a certain time, the charges shall be dismissed with an

absolute bar to prosecution. Ark. R. Crim. P. 28.1(c); Ark. R. Crim. P. 30.1. Arkansas Rules of



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Criminal Procedure 28.2 and 28.3 set out the calculation of time under the speedy-trial rule and

authorize time periods to be excluded from calculation that result from necessary delays.

         Appellant was arrested on July 3, 2007, and was brought to trial on March 9, 2010. For

the purpose of determining time under Rule 28.1, the time for trial commenced on the date of

appellant’s arrest and ended on the day of appellant’s trial. Ark. R. Crim. P. 28.2(a). A total of

971 days elapsed during that time frame, which constitutes the initial speedy-trial time

calculation. This time period exceeded the one-year limitation in Rule 28.1(c) by 606 days.

However, pursuant to Rule 28.3(c), the speedy-trial clock was tolled during the periods of delay

resulting from continuances granted at the request of appellant or his trial counsel. The clock

was also tolled during the periods of delay resulting from the absence or unavailability of

appellant. Ark. R. Crim. P. 28.3(e). The record reflects that appellant requested a number of

continuances and failed to appear for a scheduled trial date on August 18, 2009. He was not

apprehended until December 9, 2009. The periods of delay resulting from appellant’s requests

for continuances and absence totaled 729 days.2 Because the excluded period of delay exceeds

the period of time for which the State would have had to account, a motion to dismiss on the

ground of a speedy-trial violation would have been without merit, and, thus, failure of counsel

to make such a motion does not constitute ineffective assistance. Accordingly, we affirm on this

point.



         2
         For the purpose of calculating the excluded time period, we do not consider an 84-day period
of delay resulting from a continuance granted on September 18, 2007. The circuit court’s criminal
docket reflects that the case was continued on appellant’s motion, and the record includes a motion for
continuance filed by appellant’s trial counsel on that date. However, a review of the transcript indicates
that the continuance was granted on the State’s motion.

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        Finally, appellant asserted in his petition and on appeal allegations of due-process and

equal-protection violations, as well as the denial of a fair trial. Specifically, appellant argues on

appeal that he was not afforded effective assistance of counsel, that the circuit court issued an

arrest warrant on a perjured affidavit for arrest, and that the State engaged in prosecutorial

misconduct because the prosecutor knew that the arrest warrant was not supported by probable

cause. With the exception of the claim regarding effective assistance of counsel, which has

already been addressed herein, appellant’s claims did not merit postconviction relief under Rule

37.1.

        Allegations of trial error, even those of constitutional dimension, must be raised at trial

and subsequently on the record on direct appeal. Watson v. State, 2012 Ark. 27 (per curiam);

Delamar v. State, 2011 Ark. 87 (per curiam). Such claims are not cognizable in Rule 37.1

proceedings. Walton v. State, 2013 Ark. 254 (per curiam); Webb v. State, 2013 Ark. 153 (per

curiam); Davis v. State, 2013 Ark. 118 (per curiam). Likewise, appellant’s claims of prosecutorial

misconduct are also not cognizable in Rule 37.1 proceedings. Meek v. State, 2013 Ark. 314 (per

curiam) (holding that claims of prosecutorial misconduct are claims of trial error and are not

cognizable in a Rule 37.1 petition); Walton, 2013 Ark. 254; Scott v. State, 2012 Ark. 199, 406

S.W.3d 1 (citing Lowe, 2012 Ark. 185, ___ S.W.3d ___).

        Affirmed.

        Robert J. Moten, pro se appellant.

        Dustin McDaniel, Att’y Gen., by: Ashley Argo Priest, Ass’t Att’y Gen., for appellee.




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