                                      Cite as 2014 Ark. 419

                   SUPREME COURT OF ARKANSAS
                                         No.   CR-13-971

                                                    Opinion Delivered October   9, 2014

BILLY WAYNE STEWART                                 PRO SE APPEAL FROM THE
                                APPELLANT           GARLAND COUNTY CIRCUIT
                                                    COURT
V.                                                  [NO. 26CR-10-620]

                                                    HONORABLE MARSHA R.
STATE OF ARKANSAS                                   HEARNSBERGER, JUDGE
                                  APPELLEE
                                                    AFFIRMED.


                                         PER CURIAM


       In 2011, appellant Billy Wayne Stewart was found guilty by a jury of the rape of J.H., in

violation of Arkansas Code Annotated section 5-14-103(a)(2)(B) (Repl. 2005), which provides

that a person commits rape if he or she engages in sexual intercourse or deviate sexual activity

with another person who is incapable of consent because he or she is mentally defective. At the

time of the rape, J.H. was twenty-three years of age but functioned on a first-or second-grade

level and was under the guardianship of another person. Appellant, who was a friend of the

family, stayed with J.H. and her parents for a short time and engaged in sex with J.H. on at least

one occasion, which resulted in pregnancy. A paternity test established that appellant was the

father of the child. Appellant was sentenced to 840 months’ imprisonment. We affirmed.

Stewart v. State, 2012 Ark. 349, 423 S.W.3d 69.

       Subsequently, appellant timely filed in the trial court a verified, pro se petition for

postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). The trial
                                      Cite as 2014 Ark. 419

court denied the petition after holding a hearing. Appellant brings this appeal.

       In his petition, appellant alleged that he was not afforded effective assistance of counsel

at trial. This court has held that it will reverse the trial court’s decision granting or denying

postconviction relief only when that decision is clearly erroneous. Conley v. State, 2014 Ark. 173,

433 S.W.3d 234. 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. Caery v. State, 2014 Ark. 247 (per curiam); Sartin

v. State, 2012 Ark. 155, 400 S.W.3d 694.

       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 a totality of

the evidence under the standard set forth by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668 (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.

       The benchmark for judging a claim of ineffective assistance of counsel must be “whether

counsel’s conduct so undermined the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686. Pursuant to

Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner

raising a claim of ineffective assistance must 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. Caery, 2014 Ark. 247; Williams v. State, 369 Ark. 104, 251

S.W.3d 290 (2007). There is a strong presumption that trial counsel’s conduct falls within the



                                                2
                                      Cite as 2014 Ark. 419

wide range of professional assistance, and an appellant 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. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55; McCraney v. State, 2010

Ark. 96, 360 S.W.3d 144 (per curiam). Second, the petitioner must show that counsel’s deficient

performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Holloway v.

State, 2013 Ark. 140, 426 S.W.3d 462. A petitioner making an ineffective-assistance-of-counsel

claim must show that his counsel’s performance fell below an objective standard of

reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner

must show that 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. Breeden v. State, 2014 Ark. 159 (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. 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. Id. “[T]here is no reason for a court deciding an ineffective assistance claim . . . to

address both components of the inquiry if the defendant makes an insufficient showing on one.”

Strickland, 466 U.S. at 697.

       We first note that appellant in his brief has expanded the allegations raised in the Rule

37.1 petition and discussed at the evidentiary hearing. On appeal, an appellant is limited to the



                                                3
                                      Cite as 2014 Ark. 419

scope and nature of the arguments he or she made below that were considered by the trial court

in rendering its ruling. Thornton v. State, 2014 Ark. 113 (per curiam). We will not consider new

arguments raised for the first time on appeal or consider factual substantiation added to bolster

the allegations made below. Id.; see also Bryant v. State, 2013 Ark. 305, 429 S.W.3d 193 (per

curiam); Hogan v. State, 2013 Ark. 223 (per curiam). Likewise, issues raised below but not argued

on appeal are considered abandoned. Springs v. State, 2012 Ark. 87, 387 S.W.3d 143.

       Appellant admitted at trial that he had engaged in sexual intercourse with J.H. As stated,

J.H. became pregnant, and it was proved by scientific testing that appellant was the child’s father.

In her testimony, J.H. said on cross-examination by the defense that Amy Stewart, appellant’s

wife, was in the room when J.H. and appellant were having intercourse. Appellant contended

in his Rule 37.1 petition that his attorney should have called Amy Stewart to testify that she was

not present. Appellant alleged that, had counsel called Amy, she would have testified that she

was not present, thus demonstrating to the jury that J.H. was capable of lying and rebutting the

testimony of a State witness that J.H. could not lie. Appellant also contended that Amy would

have been an important “eye witness” who could have testified that J.H. had talked of having

multiple sexual encounters, which would have suggested to the jury that J.H. understood what

she was doing when she engaged in intercourse with appellant. He argued that Amy’s testimony

would have established that he could not have been guilty of having engaged in sexual conduct

with a mentally defective person who was incapable of giving consent because J.H. had been

knowledgeable about sex and initiated intercourse with him. At the Rule 37.1 hearing, counsel

testified that he did not believe that Amy’s testimony would have benefited the defense.



                                                 4
                                      Cite as 2014 Ark. 419

       The trial court declined to grant postconviction relief on the claim, and we find no error.

The gravamen of the charge against appellant was that he had engaged in sexual relations with

J.H. who was incapable of consent by virtue of her mental age of six or seven years. Appellant

did not argue that he had not engaged in intercourse with J.H. and that fact was proven by

appellant’s having fathered J.H.’s child. Under the circumstances, it cannot be said that the

outcome of the trial would have been different had the jury known that J.H. had been incorrect

in her testimony about Amy’s presence. With respect to Amy’s ability to shed light on J.H.’s

prior sexual experience, even if such testimony had been admissible, appellant did not show that

Amy’s testimony would have demonstrated that J.H.’s intellectual functioning was such that she

was capable of consent.

       In a related claim, appellant argues that counsel should have filed a formal motion to

permit evidence of J.H.’s prior sexual conduct to be admitted into evidence at trial. He notes

that, when he argued on direct appeal that the trial court erred in not allowing such testimony,

this court held that the issue was not preserved for appeal. He contends that counsel’s failure

to file the motion challenging the Arkansas rape-shield statute, codified at Arkansas Code

Annotated section 16-42-101 (Repl. 1999), resulted in his being unable to confront witnesses.

       When it is asserted that counsel was ineffective for the failure to make a motion or

argument, the petitioner must show that the motion or argument would have been meritorious

because the failure to make an argument that is meritless is not ineffective assistance of counsel.

Conley, 2014 Ark. 172, 433 S.W.3d 234 (citing Mitchell v. State, 2012 Ark. 242). For that reason,

appellant must demonstrate that a motion challenging application of the rape-shield statute to



                                                5
                                      Cite as 2014 Ark. 419

his case would have had merit. See Conley, 2014 Ark. 172, 433 S.W.3d 234 (citing Strain v. State,

2012 Ark. 42, 394 S.W.3d 294). Counsel at trial made numerous attempts to elicit testimony that

concerned J.H.’s prior sexual conduct, which were rebuffed by the trial court, and appellant has

not shown that a formal objection to application of the rape-shield statute to his case would have

been successful.

       Moreover, at the evidentiary hearing, counsel testified that he did not file such a motion

as a matter of trial strategy. He explained that he did not believe that it would have been helpful

to the defense in light of the fact that appellant was charged with having engaged in sex with a

mentally deficient person, and evidence of J.H.’s prior sexual conduct would have caused the

jury to see her as a sympathetic figure who had been preyed upon by others. It was preferable,

therefore, to focus on appellant’s reasons for believing that she was capable of consent. Counsel

further said that he feared that focusing on J.H.’s prior conduct rather than her conduct with

appellant would have risked alienating or angering the jury and would have resulted in a longer

sentence of imprisonment if appellant were found guilty.

       Counsel is allowed great leeway in making strategic and tactical decisions. Ellis v. State,

2014 Ark. 24 (per curiam) (citing Leak v. State, 2011 Ark. 353 (per curiam)). We have repeatedly

held that matters of trial strategy, even if the strategy proves improvident, are not grounds for

granting postconviction relief. Hayes v. State, 2014 Ark. 104, 431 S.W.3d 882; Prater v. State, 2012

Ark. 164, 402 S.W.3d 68; Fretwell v. State, 292 Ark. 96, 728 S.W.2d 180 (1987) (per curiam).

Nevertheless, the decisions must be based on reasonable professional judgment. Ellis, 2014 Ark.

24; Clarks v. State, 2011 Ark. 296 (per curiam); Leak, 2011 Ark. 353. Here, as the crux of the



                                                 6
                                      Cite as 2014 Ark. 419

charge against appellant was the ability of the victim to give consent, appellant did not establish

that counsel’s decision not file a motion challenging the rape-shield statute was not an exercise

of reasonable professional judgment.

       Appellant also argues that counsel was remiss in not calling an expert witnesses to rebut

testimony by the State’s witnesses that J.H. functioned on a six-or seven-year-old level and to

show that she was not taking “mental medication.” He did not, however, state in his petition

or at the evidentiary hearing what expert would have been available to contradict the testimony

or on what information an expert could have contradicted the testimony that J.H. was of low

intelligence. While he alleges that doctors should have been called to testify for the defense, that

a mental evaluation of J.H. should have been conducted, and that a more in-depth investigation

should have been carried out by counsel to show that J.H. was capable of giving consent, he fails

to demonstrate that more investigation would have uncovered specific facts that would have

benefited the defense or that there was good cause for the defense to move for a mental

evaluation of J.H., which might have resulted in further proof of the low level of J.H.’s

intellectual functioning. Again, appellant failed to offer facts to show actual prejudice to the

defense.

       To warrant postconviction relief on the ground that counsel was ineffective for failure

to perform adequate investigation, a petitioner must delineate the actual prejudice that arose

from the failure to investigate and demonstrate a reasonable probability that the specific

materials that would have been uncovered with further investigation could have changed the trial

outcome. Green v. State, 2014 Ark. 284 (per curiam); Bryant, 2013 Ark. 305, 429 S.W.3d 193.



                                                 7
                                       Cite as 2014 Ark. 419

This court has held that general assertions, unsupported with facts, that counsel did not meet

with the defendant often enough, or did not prepare for trial aggressively enough, do not

provide a basis for a finding of ineffective assistance of counsel. Polivka v. State, 2010 Ark. 152,

362 S.W.3d 918 (citing Furr v. State, 297 Ark. 233, 761 S.W.2d 160 (1988)). The burden is

entirely on the claimant to provide facts that affirmatively support his or her claims of prejudice;

neither conclusory statements nor allegations without factual substantiation are sufficient to

overcome the presumption that counsel was effective, and such statements and allegations will

not warrant granting a Rule 37.1 petition. Green, 2014 Ark. 284; Dixon v. State, 2014 Ark. 97 (per

curiam) (citing Abernathy, 2012 Ark. 59, 386 S.W.3d 477). Appellant has failed to provide facts

sufficient to show that he was prejudiced by counsel’s failure to properly investigate the case

before trial or failure to call doctors as witnesses for the defense.

       Appellant was allowed at the evidentiary hearing to raise the issue of whether he was

prejudiced by counsel’s failure to make him aware of a plea bargain offered by the State whereby

he would be allowed to plead guilty and be sentenced to ten years’ imprisonment. While this

issue was not raised in the Rule 37.1 petition, it was raised at the hearing, and the trial court ruled

on the issue. As the question was raised at the hearing and ruled on by the court, it is clear that

the court constructively allowed appellant to amend his petition to bring up the issue.

Accordingly, the issue can be raised in this appeal. See Chunestudy v. State, 2014 Ark. 345, ___

S.W.3d ___ (per curiam); see also Croft v. State, 2010 Ark. 83 (per curiam).

       As evidence that counsel failed to communicate the plea offer to him, appellant produced

a document that he contended contained the offer. Counsel testified that he had never seen the



                                                  8
                                      Cite as 2014 Ark. 419

document, that the only plea offer that was made by the State was an offer for appellant to plead

guilty and accept a forty-year prison sentence, and that the document was an obvious forgery.

The deputy prosecutor whose name appeared on the document testified that no such offer was

made, that the document was not in the form routinely used by her office, that she had not

signed the document, and that it appeared to have been a forgery utilizing her signature taken

from some other document. The trial court held that the witnesses for the State were more

credible than appellant and denied relief. It was for the trial court as fact-finder to assess the

credibility of the witnesses at the hearing and determine whom to believe. Barber v. State, 2014

Ark. 179 (per curiam) (citing Tornavacca v. State, 2012 Ark. 224, 408 S.W.3d 727). Accordingly,

appellant has not shown that the trial court’s decision on the issue was reversible error.

       Appellant next contends that counsel should have objected to the State’s having allowed

J.H. to visit the courtroom prior to trial. He alleges that the visits amounted to coercion by the

State for J.H. to testify in a particular way and indicates that she was coached on what to say at

trial. Because he offered no substantiation for the allegation that J.H. was coerced or coached

to give certain testimony, appellant did not show that counsel was ineffective under the Strickland

standard for not challenging J.H.’s testimony. His claims were not supported by facts sufficient

to overcome the presumption that counsel’s conduct was within the wide range of reasonable,

acceptable professional assistance. As appellant did not meet his burden of demonstrating that

counsel made a specific error that prejudiced the defense, the trial court did not err in declining

to grant relief under Rule 37.1 on the allegation. When there is no factual support for an

allegation that demonstrates a specific failure on the part of counsel, there is no showing of



                                                9
                                       Cite as 2014 Ark. 419

ineffective assistance of counsel under the Strickland standard. Caery, 2014 Ark. 247 (citing

Mathis v. State, 2014 Ark. 148 (per curiam) (holding that conclusory allegations are insufficient

to overcome the presumption that counsel is effective under Strickland)).

       Finally, intertwined with his arguments pertaining to claims of ineffective assistance of

counsel, appellant has included assertions in his brief that the evidence was insufficient to sustain

the judgment and that there were multiple instances of trial error. Such claims are not

cognizable in a Rule 37.1 proceeding. Armstrong v. State, 2014 Ark. 127 (per curiam). Claims of

mere trial error that could have been addressed at trial, and on the record on direct appeal, are

not grounds for relief under Rule 37.1. Id.; Malone v. State, 294 Ark. 127, 741 S.W.2d 246 (1987)

(per curiam). Rule 37.1 is also not a means to challenge the admissibility or the sufficiency of

evidence. Armstrong, 2014 Ark. 127; see also Jackson v. State, 2013 Ark. 19 (per curiam); Watson v.

State, 2012 Ark. 27 (per curiam) (assertions of trial error, even those of constitutional dimension,

must be raised at trial and on appeal); Robertson v. State, 2010 Ark. 300, 367 S.W.3d 538 (per

curiam) (allegations of trial error that could have been raised at trial or on appeal may not be

raised in Rule 37.1 proceedings).

       Affirmed.

       Billy Wayne Stewart, pro se appellant.

       Dustin McDaniel, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.




                                                 10
