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                SUPREME COURT OF ARKANSAS
                                        No.   CR-15-22

WAYNE LADELL TAYLOR, JR.                          Opinion Delivered   October 1, 2015
                   APPELLANT
                                                  APPEAL FROM THE PULASKI
V.                                                COUNTY CIRCUIT COURT
                                                  [NO. CR-2010-3381]

STATE OF ARKANSAS                                 HONORABLE BARRY SIMS, JUDGE
                                  APPELLEE
                                                  AFFIRMED.


                          PAUL E. DANIELSON, Associate Justice

       Appellant Wayne Ladell Taylor, Jr., appeals an order of the Pulaski County Circuit

Court denying his petition for postconviction relief filed pursuant to Arkansas Rule of

Criminal Procedure 37.1 (2015). On appeal, he argues that the circuit court erred in denying

his Rule 37 petition because appellate counsel’s failure to appeal the trial court’s ruling that

prohibited him from inquiring of the victims about any plea or immunity deal offered by the

State constituted ineffective assistance. We affirm.

       On October 28, 2011, Taylor was convicted by a Pulaski County Circuit Court jury

of aggravated robbery, theft of property, first-degree battery, and committing a terroristic act

in connection with a drug buy. The victims, Nathan Holloway and Tommy Pickel, drove

from Des Arc to Jacksonville to purchase marijuana and arrangements were made to meet a

third person at a local park. While there, Taylor and two other men arrived and robbed

Pickel of $650. Gunfire then broke out, and a bullet struck Pickel. Holloway and Pickel

were initially hesitant to report the robbery and shooting to police because of their intent to
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purchase drugs but ultimately did file a police report,1 and Taylor was charged by felony

information, leading to the aforementioned convictions. He was sentenced to a total of

eighty-seven years in the Arkansas Department of Correction.

       His conviction and sentences were affirmed by the Arkansas Court of Appeals in Taylor

v. State, 2013 Ark. App. 146. Following the court of appeals’ affirmance, Taylor filed a Rule

37 petition, asserting two grounds for relief. First, Taylor asserted that he was entitled to

question the victims regarding the fact that they were not charged with possession of

marijuana, and appellate counsel’s waiver of this argument on appeal constituted ineffective

assistance of counsel. Second, Taylor argued that he was improperly convicted of both

aggravated robbery and first-degree battery in violation of Arkansas Code Annotated section

5-13-201(a)(4) because the first-degree-battery charge is a lesser-included offense of

aggravated robbery.

       A hearing was held in the circuit court on January 23, 2014, although the record

reflects that counsel for Taylor was not present. At that hearing, the State conceded that

Taylor was subjected to double jeopardy on the charges of aggravated robbery and first-degree

battery and agreed to complete a modified sentencing order reflecting the dismissal of the

battery charge and the deletion of the twenty-year sentence imposed for that charge. As to



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         The victims testified at trial that they drove to Jacksonville with the intent to buy
marijuana, and during the trial, Taylor was allowed to elicit certain facts about the victims’
intent to buy drugs that they intended to resell, as well as the fact that police discovered
marijuana in the victims’ truck. But, the trial court granted a motion in limine filed by the
State to prohibit defense counsel from inquiring of the victims why the State had not charged
them with possession of marijuana.

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Taylor’s other claim, the State argued it was without merit. The court instructed the State

to speak with counsel for Taylor and request another hearing if necessary. Thereafter, on

September 8, 2014, the circuit court entered an order denying Taylor’s claim of ineffective

assistance of counsel. The court reasoned that the jury had adequate information about the

victims being present in the park to purchase marijuana, thus, Taylor could not show

prejudice under Strickland v. Washington, 466 U.S. 668 (1984), because Taylor would not have

prevailed on the issue had it been appealed.

       That same day an amended sentencing order was filed and a second amended

sentencing order was filed on September 11, 2014, both of which reflected the dismissal of

the offense of battery in the first degree. This appeal followed.

       Taylor’s sole point for reversal is that the circuit court erred in denying his Rule 37

petition because his appellate counsel was ineffective in failing to raise an issue on appeal

regarding the trial court’s order that resulted in Taylor not being able to cross-examine two

key witnesses about whether the State had charged either of them with possession of

marijuana. Taylor asserts that the right to cross-examine a witness for bias is fundamental and

outside the scope of the trial court’s discretion. Moreover, Taylor asserts that the right to

cross-examine regarding offers of leniency is guaranteed by the Confrontation Clause of the

Sixth Amendment.

       The State counters that Taylor’s argument is without merit because the constitutional

issues he now raises were never raised at the trial-court level and, thus, could not have

successfully been raised on appeal. Moreover, the State argues that Taylor’s argument is


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without merit because once the trial court allowed Taylor to cross-examine the victims about

their presence to purchase marijuana, the court had the discretion as to how far it would allow

the cross-examination to go.

       This court does not reverse a denial of postconviction relief unless the circuit court’s

findings are clearly erroneous. Golden v. State, 2013 Ark. 144, 427 S.W.3d 11. 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.

       On review of claims of ineffective assistance of counsel, this court follows the standard

set forth in Strickland, 466 U.S. 668. Under that two-prong analysis, 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. Wertz v. State, 2014 Ark.

240, 434 S.W.3d 895. 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.” Sherman v. State,

2014 Ark. 474, at 2, 448 S.W.3d 704, 708 (per curiam) (quoting Strickland, 466 U.S. at 686).

In making a determination on a claim of ineffective assistance of counsel, this court considers

the totality of the evidence. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883.

       To satisfy the first prong of the Strickland test, the petitioner must show that counsel’s

performance was deficient. Decay v. State, 2014 Ark. 387, 441 S.W.3d 899. To meet this

requirement, a postconviction petitioner must show that counsel made errors so serious that


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counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth

Amendment to the United States Constitution. Anderson v. State, 2015 Ark. 18, 454 S.W.3d

212 (per curiam). There is a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance, and a petitioner has the burden of overcoming this

presumption by identifying specific acts or omissions of counsel, which, when viewed from

counsel’s perspective, could not have been the result of reasonable professional judgment.

Stewart v. State, 2014 Ark. 419, 443 S.W.3d 538 (per curiam).

       In order to meet the second prong of the test, a claimant must show that there is a

reasonable probability that the fact-finder’s decision would have been different absent

counsel’s errors. Delamar v. State, 2011 Ark. 87 (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 the sentencing. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006).

       Unless a petitioner under Rule 37.1 makes both required showings under the Strickland

analysis, it cannot be said that the conviction resulted from a breakdown in the adversarial

process that renders the result unreliable. Anderson, 2015 Ark. 18, 454 S.W.3d 212. There

is no reason for a court deciding an ineffective-assistance claim to address both components

of the inquiry if the petitioner fails to make a sufficient showing on one. Id.

       Specifically, with regard to ineffectiveness claims of appellate counsel, this court has

recognized that a criminal defendant is entitled to the effective assistance of counsel on direct

appeal. Walton v. State, 2013 Ark. 254 (per curiam). Additionally, this court has explained


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that counsel’s failure to raise a specific issue must have amounted to error of such magnitude

that it rendered appellate counsel’s performance constitutionally deficient under the Strickland

criteria. State v. Rainer, 2014 Ark. 306, 440 S.W.3d 315. The petitioner must show that

there could have been a specific issue raised on appeal that would have resulted in the

appellate court’s declaring reversible error. Id. It is petitioner’s responsibility in a Rule 37.1

petition to establish that the issue was raised at trial, that the trial court erred in its ruling on

the issue, and that an argument concerning the issue could have been raised on appeal to merit

appellate relief. Walton, 2013 Ark. 254. It is axiomatic that the failure to make a meritless

argument on appeal does not constitute ineffective assistance of counsel. Magness v. State,

2015 Ark. 185, 461 S.W.3d 337 (per curiam).

       Here, Taylor asserts that his appellate counsel was deficient because he did not argue

on appeal that it was error for the trial court to grant the State’s motion in limine. The record

reflects that, at a pretrial hearing, the State moved in limine to prohibit any questioning about

drugs found in the victims’ truck or the lack of charges filed against the victims for possession

of marijuana. The State argued that such issues were not relevant to any of the issues in

Taylor’s trial. Taylor argued in response, as follows:

       I think it’s extremely relevant. We’re talking about a case that deals with drugs, a drug
       transaction. They have drugs in their vehicle. It’s to our defense that they it was
       actually the other way around, that there was an armed robbery by the defendants --
       by the alleged victims in this case. And I think that’s relevant to whether or not they,
       one, were coming to purchase marijuana. Two, it goes to whether or not -- I think
       it’s extremely relevant, first of all, because it involves that. I mean, this case involves
       a drug deal.




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The State argued in rebuttal that the issue of whether the victims were charged with

possession was of absolutely no relevance to Taylor’s case, and the trial court quickly agreed

and ruled that it was granting that part of the motion in limine. Taylor again argued that he

should be able to mention whether any possession charges existed, but the court reiterated its

ruling that the lack of any charges was not relevant to Taylor’s case. The court did rule,

however, that Taylor could delve into other facts related to the victims’ possession, use, and

desire to purchase marijuana.

       It is clear from the record that Taylor never raised any argument that he had an

absolute right to question the witnesses regarding possible bias, nor did he ever raise any issue

of his right to confrontation under the Sixth Amendment. Thus, because those issues were

not raised to the trial court, we cannot say that appellate counsel was deficient for failing to

challenge the trial court’s grant of the State’s motion in limine. Any such issue raised on

direct appeal would not have been preserved for appellate review, and appellate counsel

cannot be deficient for failing to make an argument wholly without merit.

       Before leaving this point, we note that in response to the State’s contention that

appellate counsel could not have been deficient for failing to raise an argument that was not

preserved for appellate review, Taylor asserts that it is clear from the context of the argument

raised at trial that he was arguing that the court’s limitation on his cross-examination impeded

his right to confront the witnesses against him and to put on a defense. In support, he cites

to Rainer, 2014 Ark. 306, 440 S.W.3d 315, for the proposition that this court has held that

an argument need not be explicitly made to be preserved, but rather it is enough that the


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argument is “apparent from the context.” Id. at 10 n.2, 440 S.W.3d at 321 n.2. Even if we

were to agree with Taylor in this respect, we cannot ignore the fact that the circuit court’s

ruling on the issue was clearly limited to the issue of relevance. The trial court never ruled

on any issue of bias or right of confrontation. This court has made it clear that it will not

decide issues that were not decided by the lower court. Smith v. State, 363 Ark. 456, 215

S.W.3d 626 (2005). Because the circuit court did not rule on those issues, there would have

been nothing for this court to review on appeal and, again, appellate counsel cannot be

deficient for failing to raise a meritless claim.

       Affirmed.

       John Wesley Hall and Sarah M. Pourhosseini, for appellant.

       Leslie Rutledge, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.




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