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                  SUPREME COURT OF ARKANSAS
                                        No.   CR-12-577

LEON JACKSON RICE                                  Opinion Delivered   May 15, 2014
                                APPELLANT
                                                   PRO SE MOTIONS TO SUPPLEMENT
V.                                                 OR SETTLE THE RECORD, FOR
                                                   EXTENSION OF TIME TO FILE
                                                   BRIEF, AND FOR DEFAULT
STATE OF ARKANSAS                                  JUDGMENT, AND “NOTIFICATION
                                  APPELLEE         AND CONSIDERATION TO THE
                                                   COURT”
                                                   [PULASKI COUNTY CIRCUIT COURT,
                                                   NO. 60CR-10-1733]

                                                   HONORABLE HERBERT T. WRIGHT,
                                                   JR., JUDGE

                                                   MOTIONS TO SUPPLEMENT OR
                                                   SETTLE THE RECORD DENIED;
                                                   APPEAL DISMISSED; MOTIONS FOR
                                                   EXTENSION OF TIME TO FILE
                                                   BRIEF AND DEFAULT JUDGMENT
                                                   AND “NOTIFICATION AND
                                                   CONSIDERATION TO THE COURT”
                                                   MOOT.


                                       PER CURIAM


       In 2010, appellant Leon Jackson Rice was found guilty by a jury in the Pulaski County

Circuit Court of possession of a controlled substance (cocaine) and resisting arrest, and he was

sentenced as a habitual offender to an aggregate term of 360 months’ imprisonment. The

Arkansas Court of Appeals affirmed. Rice v. State, CR-11-227 (Ark. App. Nov. 2, 2011)

(unpublished) (original docket no. CACR 11-227). In 2012, appellant timely filed in the circuit

court a verified, pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal
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Procedure 37.1 (2010), asserting various allegations of ineffective assistance of counsel,

prosecutorial misconduct, and due-process violations. The circuit court denied the petition

without a hearing,1 and appellant timely lodged an appeal of that order in this court. Now

before us are appellant’s pro se motions to supplement or settle the record, for extension of time

to file brief, and for default judgment, as well as a pleading entitled “Notification and

Consideration to the Court,” in which appellant requests that this court grant relief on the

pending motions.

       We previously granted appellant’s request to supplement the record and issued a writ of

certiorari to the circuit court to provide a supplemental record containing the transcript and

record of appellant’s plea-and-arraignment hearing held on June 16, 2010, that was referenced

in the order denying postconviction relief. Rice v. State, 2013 Ark. 167 (per curiam). We

acknowledged that, in his previous request, appellant referenced several documents in addition

to the transcript of the plea-and-arraignment hearing; however, we declined to include those

documents in the writ of certiorari issued to the circuit court because the trial court did not

reference the documents in its order. Id. In the pending motions to supplement or settle the

record now before us, appellant again seeks to have the record supplemented with documents

not referenced by the circuit court in its order denying postconviction relief. As was the case

       1
         Arkansas Rule of Criminal Procedure 37.3(c) provides that an evidentiary hearing should
be held in postconviction proceedings unless the files and record of the case conclusively show
that the prisoner is entitled to no relief. Eason v. State, 2011 Ark. 352 (per curiam); Hayes v. State,
2011 Ark. 327, 383 S.W.3d 824 (per curiam). Where the circuit court dismisses a Rule 37.1
petition without an evidentiary hearing, it “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); see Eason, 2011 Ark. 352. In the instant case, the circuit court’s order denying
postconviction relief complies with the requirements of Rule 37.3.

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before, appellant has not demonstrated that the requested documents should be included in the

record on appeal. We therefore deny appellant’s motions to supplement or settle the record.

       Because it is clear from the record that appellant could not prevail on appeal, we dismiss

the appeal, and appellant’s remaining motions and pleading are moot. An appeal of the denial

of postconviction relief will not be allowed to proceed when it is clear that the appellant could

not prevail. Holliday v. State, 2013 Ark. 47 (per curiam); Bates v. State, 2012 Ark. 394 (per curiam);

Martin v. State, 2012 Ark. 312 (per curiam).

       In the Rule 37.1 petition, appellant alleged that trial counsel was ineffective for conspiring

with the prosecutor, failing to file motions, failing to “challenge alteration of charges,” and

failing to challenge probable cause. When considering an appeal from the denial of a Rule 37.1

petition, the sole question presented 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 v. State, 2013 Ark. 237, ___

S.W.3d ___ (per curiam); Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. 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. Hickey, 2013 Ark. 237,

___ S.W.3d ___; Springs, 2012 Ark. 87, 387 S.W.3d 143. 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



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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, 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 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 the circuit court found in its order, appellant’s claims of ineffective assistance do not

warrant relief as they are either refuted by the record or lack factual substantiation. The record

does not reflect that any charges were changed by the prosecutor,2 and appellant did not identify

in the petition which charges were changed by the prosecutor or the manner in which they were

changed. Nor does the record reflect that trial counsel failed to timely file a notice of appeal.


       2
        The record does reflect that the felony information was amended to include the charge
of second-degree battery; however, the amendment was made prior to trial, and appellant was
acquitted on this charge.

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Appellant’s remaining claims of ineffective assistance are conclusory in nature and lack any

factual substantiation.    Neither conclusory statements nor allegations without factual

substantiation are sufficient to overcome the presumption that counsel was effective, nor do

they warrant granting postconviction relief. Wedgeworth v. State, 2013 Ark. 119 (per curiam); Crain

v. State, 2012 Ark. 412 (per curiam). We have repeatedly held that conclusory claims are

insufficient to sustain a claim of ineffective assistance of counsel. Wedgeworth, 2013 Ark. 119;

Crain, 2012 Ark. 412; Reed v. State, 2011 Ark. 115 (per curiam).

       The remaining claims contained in appellant’s petition concerned prosecutorial

misconduct and due-process violations. Specifically, appellant alleged, without any factual

substantiation, that the prosecutor “fabricated and falsified charges through alteration and

adding untruthful accounts,” conspired with the North Little Rock Police Department and

appellant’s court-appointed attorney to convict appellant on these “falsified” charges, and

withheld the name of one of the State’s witnesses. Appellant further alleged that the charges

against him were not supported by probable cause,3 that the criminal information did not apprise

him of the crimes with which he was charged, and that he was denied the opportunity to be

heard and to defend his case.

       Not only are appellant’s claims conclusory and refuted by the record, but they are also

not cognizable in a Rule 37.1 proceeding. Appellant’s assertions of prosecutorial misconduct


       3
         Appellant’s arguments regarding the lack of probable cause seem to stem from his
misunderstanding that all criminal proceedings should have ceased when the arrest warrant was
recalled. It is apparent from the record, however, that the arrest warrant was recalled because
there was no need for its issuance. Service of the arrest warrant was waived on appellant’s behalf
at the plea-and-arraignment hearing.

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and due-process violations are allegations of trial error. See Hale v. State, 2011 Ark. 476 (per

curiam); Bell v. State, 2010 Ark. 65, 360 S.W.3d 98 (per curiam) (citing Viveros v. State, 2009 Ark.

548 (per curiam)). Such claims of trial error, even those of constitutional dimension, must be

raised at trial and on direct appeal. Hale, 2011 Ark. 476. Our postconviction rule does not

permit a direct attack on a judgment or substitute for an appeal. Hawthorne v. State, 2010 Ark.

343 (per curiam). The sole exception lies in claims raised in a timely petition that are sufficient

to void the judgment and render it a nullity. Id. Appellant did not establish with factual

substantiation that any claims of prosecutorial misconduct or of due-process violations raised

in the petition were sufficient to void the judgment in his case.

          We will not reverse a circuit court’s decision granting or denying postconviction relief

unless that decision is clearly erroneous. Pankau v. State, 2013 Ark. 162; 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. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. A review of the

Rule 37.1 petition and the order reveals no error in the circuit court’s decision to deny relief.

Thus, appellant could not prevail if the appeal were permitted to proceed, and we dismiss the

appeal.

          Motions to supplement or settle the record denied; appeal dismissed; motions for

extension of time to file brief and default judgment and “Notification and Consideration to the

Court” moot.

          Leon Jackson Rice, pro se appellant.
          Dustin McDaniel, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.

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