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                  SUPREME COURT OF ARKANSAS
                                         No.   CR-14-640

ARBURY CHARLES BOWERMAN                             Opinion Delivered October   1, 2015
                   APPELLANT
                                                    PRO SE APPEAL FROM THE LOGAN
V.                                                  COUNTY CIRCUIT COURT
                                                    [NO. 42CR-11-86]

STATE OF ARKANSAS                                   HONORABLE JERRY DON RAMEY,
                                 APPELLEE           JUDGE

                                                    AFFIRMED.


                                         PER CURIAM


       Appellant Arbury Charles Bowerman brings this appeal from the denial of his petition

seeking postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2014). He fails

to demonstrate clear error, and we affirm the order denying relief.

       In 2012, Bowerman was convicted of aggravated robbery, residential burglary, and third-

degree battery, and he was sentenced to an aggregate term of 540 months’ imprisonment in the

Arkansas Department of Correction. The Arkansas Court of Appeals affirmed the judgment.

Bowerman v. State, 2014 Ark. App. 221.

       The evidence presented at trial was that at least three masked men entered Larry Brown’s

home during the early morning hours on August 28, 2011. The men demanded money and

property, then held Brown’s family in the house while two of them accompanied Brown to a

shed to look for valuables. Brown got away, scuffled with the men, biting one on the hand, and

eventually returned to the house. The men fled before the police arrived. Brown testified that

he had gotten something in his mouth when he bit one of the intruders, and he said that he spat
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it into a plastic baggie and gave it to the police. DNA testing indicated that the material in the

baggie contained a mixture of Brown’s and Bowerman’s DNA. On appeal, Bowerman

unsuccessfully challenged the admission of the lab reports.

       Bowerman filed a timely Rule 37.1 petition in the circuit court in which he raised a

number of claims alleging ineffective assistance of both trial and appellate counsel. The State

filed a general denial of the petition in response. The court denied the petition, finding that a

hearing was not necessary because it could determine from a review of the files and record of

the case that the petition was without merit. The order listed the claims from the petition and

then addressed allegations concerning deficient performance by the trial attorney and counsel

on appeal that were contained in the claims. The court found that Bowerman’s allegations were

conclusory; that, although Bowerman contended trial counsel should have adopted a different

trial strategy, Bowerman failed to identify an alternate strategy or theory of the case to explain

the evidence; and that Bowerman did not allege facts to support a finding of prejudice for the

claims. The order also pointed to specific evidence offered at trial in support of the judgment,

and the court found that Bowerman had not met his burden to demonstrate ineffective

assistance.

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

relief unless it is clearly erroneous. Houghton v. State, 2015 Ark. 252, 464 S.W.3d 922. 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.



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       On appeal, Bowerman raises three points alleging error. Bowerman first alleges that the

circuit court erred in failing to appoint counsel to represent him in the Rule 37.1 proceedings.

Next, Bowerman alleges that the court did not address the claims in the petition and that it was

error to deny the petition with no more than a general denial from the State. Finally, Bowerman

alleges error in the denial of the petition without a hearing.

       Bowerman’s first point is based on his contention that the circuit court was required to

appoint counsel to represent him for the Rule 37.1 proceedings. Bowerman asserts that it was

error for the court not to appoint counsel because he was entitled to counsel under the United

States Supreme Court’s holdings in Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler,

133 S. Ct. 1911 (2013). Those decisions, however, do not dictate that counsel must be

appointed in postconviction proceedings. Mancia v. State, 2015 Ark. 115, 459 S.W.3d 259.

Moreover, Bowerman did not cite the cases in his request for counsel or make an argument that

counsel was required. Instead, he indicated that appointment of counsel was discretionary under

Arkansas Rule of Criminal Procedure 37.3(b). The argument Bowerman now makes was not

before the circuit court and was not preserved for appeal. See Watson v. State, 2014 Ark. 203, 444

S.W.3d 835 (holding that, where only a general request for counsel was made below, the

argument that appointment of counsel was required under Martinez raised the issue for the first

time on appeal and was therefore not preserved for appeal).

       Bowerman next contends that it was error for the circuit court to dispose of his petition

using an analysis of his claims that was not proposed by the State in its response and that this

independent analysis was inappropriate. The State is not, however, required to file a response



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to a Rule 37.1 petition under Arkansas Rule of Criminal Procedure 37.2. Ark. R. Crim. P. 37.2(f)

(“Within twenty (20) days after service of a petition under this rule, the state may file a response

thereto.”). Rule 37.3 nevertheless permits summary disposition of a Rule 37.1 petition where

the files and records of the case conclusively show that the petitioner is entitled to no relief.

Ark. R. Crim. P. 37.3(a). Our rules clearly contemplate that the court may examine the claims

in a Rule 37.1 petition independently and dispose of the petition summarily where it makes

appropriate written findings in support of the summary disposition under Rule 37.3(a).

       Bowerman’s last claim alleges that error resulted when the circuit court denied relief

without permitting him an opportunity to expand on the allegations in his petition at a hearing.

He contends that, because he did not have counsel representing him, he poorly articulated the

basis for his claims, that is, he did not fully describe the theory of the case that his attorney

should have pursued. Some of Bowerman’s claims were based on assertions that counsel should

have pursued a defense strategy other than the one used, but the circuit court found that

Bowerman did not identify an alternate theory of the case that counsel should have employed

instead.

       Our standard for ineffective-assistance-of-counsel claims is the two-prong analysis set

forth in Strickland v. Washington, 466 U.S. 668 (1984). Rasul v. State, 2015 Ark. 118, 458 S.W.3d

722. 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.

Mister v. State, 2014 Ark. 446. Unless a petitioner makes both showings, the allegations do not

meet the benchmark for assessing a claim of ineffective assistance. Houghton, 2015 Ark. 252, 464



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S.W.3d 922.

       A claimant must show that there is a reasonable probability that the fact-finder’s decision

would have been different absent counsel’s alleged errors in order to meet the second prong of

the test. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883. A reasonable probability is a probability

sufficient to undermine confidence in the outcome of the trial. Id. The burden is entirely on

the claimant to provide facts that affirmatively support his claims of prejudice. Mister, 2014 Ark.

446. In assessing prejudice, courts “must consider the totality of the evidence before the judge

or jury.” Rasul, 2015 Ark. 118, at 7, 458 S.W.3d at 727 (quoting Strickland, 466 U.S. at 695).

       Bowerman contends that he sufficiently identified an alternative theory of the case for

a different strategy because he alleged that counsel should have based the defense on the theory

that the events on August 28, 2011, were a “drug deal gone bad,” rather than a robbery, that

Brown had staged a robbery, and that Bowerman was not a participant in the events at issue.

The circuit court was not clearly erroneous in determining that these allegations did not provide

a factual basis to support a finding of prejudice and that Bowerman had failed to show a

different sequence of events that counsel might have successfully adopted as an alternative

theory of the case.

       Bowerman’s conclusory allegation that Brown and the other witnesses were untruthful

about the nature of the events provided no cohesive explanation for the physical evidence that

supported Brown’s account. The court pointed to evidence that Brown had wounds on his body

that were consistent with his version of events and that there was testimony from a witness

about one of the intruder’s voices, in addition to the DNA evidence, that placed Bowerman at



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the scene. There was no showing that, if counsel had adopted this proposed alternate theory of

the case, there was a reasonable probability that the jury’s decision would have been different.

       Our rules do not require circuit courts to hold a hearing on every petition. Houghton,

2015 Ark. 252, 464 S.W.3d 922. The circumstances here are similar to those in Houghton in that

the circuit court provided findings of fact that detailed the allegations and pointed to portions

of the record that supported its conclusion that the allegations lacked factual support. Despite

Bowerman’s contention to the contrary, his Rule 37.1 petition was without merit, not simply

because he failed to articulate his claims well, but because he failed to include allegations of facts

that, if proven, would have demonstrated prejudice from the alleged errors by counsel.

       Where the files and record of the case conclusively show that the appellant was not

entitled to relief, the circuit court was not clearly erroneous to deny relief without a hearing. See

Mancia, 2015 Ark. 115, 459 S.W.3d 259. Because Bowerman has failed to show any reversible

error by the circuit court, we affirm the denial of postconviction relief.

       Affirmed.

       Arbury Charles Bowerman, pro se appellant.

       Leslie Rutledge, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.




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