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                   SUPREME COURT OF ARKANSAS
                                            N". cR-16-606


                                                      opinion Delivered:   April 27,2017
ROBERT SANDRELLI
                                  APPELLANT           APPEAL FROM THE SEBASTIAN
                                                      COUNTY CIRCUIT COURT
V.                                                    INO. CR-2012-118e]

STATE OF ARKANSAS                                     HONORABLEJ. MICHAEL
                                     APPELLEE         FITZHUGH, JUDGE

                                                      AFFIRMED.



                              RHONDA K. \VOOD, Associate Justice

        This appeal returns to us after we remanded for the circuit court to hold a hearing

 on two of Robert Sandrelli's claims for ineffective assistance of counsel. After holding the
                                                        .We
 hearing, the court denied relief on both grounds.            affirm the circuit court's judgment.

        Robert Sandrelli was charged with four counts of rape. The victim was Sandrelli's

 fourteen-year-old son. Ajury trial was held in August 2013. This first trial resulted in       a   hung

 jury, and the circuit court declared   a   mistrial. A second trial was held    a   month later, which

 resulted in Sandrelli being convicted on all four counts. Our court of appeals affirmed the

 convicrion in Sandrelli u. State,2015 Ark. App.      1,27.


        Following direct review, Sandrelli filed a petition for postconviction relief under

 Arkansas Rule of Criminal Procedure 37.1. Sandrelli propounded three claims ofineffective

 assistance   of counsel that he aileged occurred at his second trial: (1) defense counsel           was

 under emotional and professional stress; (2) defense counsel failed             to call any character

 witnesses; and (3) defense counsel unilaterally decided that Sandrelli would not testify. The
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                                               a
circuit court denied Sandrelli's petition without holding   a hearing. Sandrelli appealed   to this

court, arguing that he was entitled to a hearing on his claims.

         We afErmed in part and reversed and remanded in part. See Sandrelli u. State, 201.6

Ark. 103,485 S.W.3d692. We held that Sandrelli's first claimwas conclusory; therefore,

he was not entitled to a hearing on it. But we remanded for a hearing on the last two claims.

Because the    circuit court apparently struggled to understand why this court was remanding

the matter and did not understand the concept of a "control-case," we once again explain.

This is similar to control-groups in scientific experiments. F{ere, two different trials took

place,   with two different outcomes. The first trial resulted in   a hung   jury and the second

trial resulted in a conviction. Sandrelli's petition for postconviction relief claimed that the

only fact distinguishing the rwo trials was the lack of deGnse witnesses at the second trial.

The circuit court, based on the record alone, found that counsel and Sandrelli "must have

agreed no witnesses would be called." This was speculative. We held that the circuit court

could not conclusively determine, without some evidence, that counsel's decisions were

supported by reasonable professional judgment. The circuit court should not guess the

reasons behind    the trial counsel's decisions; rather, the court should establish those reasons

based    on evidence presented at a hearing.

         On remand, the circuit court held a hearing on these two claims. Sandrelli testified

at the hearing. He stated that he testified in the first trial and intended to testi$r again at the

second trial.   Yet he claimed that his attorney, Ray Spruell, never asked him to make            a


decision whether to testify. Rather, Spruell informed him, after the first day of trial, that he
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would not be testi$ring. Sandrelli also stated that Spruell never discussed with him his

decision to call no character witnesses at the second trial.

        Spruell testified as well. He stated that whiie the first trial ended in a hung jury, the

vote was 11-1 in favor of conviction. Spruell thought the character witnesses who testified

in the first triai played an insignificant role in the jrry'r decision: "The bottom line is I never

felt that character witnesses were the key to why we got a hung jury the first time around."

For instance, Spruell noted that one witness, Betty Turner, was neryous on the stand and

agreed on cross examination that she "assumed that        if something was going on [the victim]

would keep quiet and wouldn't say anything about it." Spruell also noted that the witnesses

appeared to be surprised when they were confronted            with Sandrelli's earlier conviction for

domestic battery against his son.

                                                              'W.oodrow
         Spruell testified that the best character witness,               Star, told him berween the

first and second trials that he would no longer be a good character witness for Sandrelli.

According to Spruell, Star told him that Sandrelli had displayed behavior that would             cause


Star   to change his testimony about Sandrelli's truthfulness. Star testified as well, but         he


denied that this interaction ever took place.

         Finaily, Spruell stated that he told Sandrelli that the decision whether to testify rested

with Sandrelli. Spruell asserted that he recommended that Sandrelli not testify:        "l   knew that

Mr. Sandrelli didn't like to testiSz in the first ftriai]. So, I explained to him that it was going

to be rough on him the second time around and I didn't think he would iook good up

there." Spruell stated that Sandrelli agreed that he should not testify. One particular concern

Spruell had was Sandrelli's testimony during the first trial. When questioned about his
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domestic-battery charge against his son, Sandrelli inirially maintained rhat it was a football

injury. Yet when pressed by the prosecution, Sandrelli admitted that the he had thrown his

son across the room. This spontaneous admission contradicted a video-recorded interview

that was admitted during the second trial, wherein Sandrelli "adamantly" denied to the

police that he had ever thrown his son. Spruell was concerned how the inconsistencies

would affect Sandrelli on    cross.


       The circuit court issued a written order denying Sandrelli's petition. The court found

that counsel's decision to call no witnesses in the second trial "was a sound professional

judgment by an experienced advocate and that it was reasonable." The court further found

that "not only was counsel's advice [whether to testi$r]    a   matter of professional judgment   of

a very experienced attorney, but the decision was made by the Defendant." Finally, the

court noted that Sandrelli's testimony was "self-serving, inconsistent, and totally

unreasonable and not believable."

       We do not reverse the grant,or denial of postconviction relief unless the circuit court's

findings are clearly erroneous. Lemasteru. State,2015 Ark. 167,459 S.'W.3d 802. 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.

       Under the two-prong standard from Strickland u. Washington, 466 U.S. 668 (1984),           a


petitioner seeking postconviction relief must show that his counsel's performance             was

deficient and that the deficient performance resulted in prejudice. See Feuget u. State,2015

Ark. 43, 454 S.W.3d734. Under this standard, the petitioner must first show that counsel's
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performance was deficient. Id. This requires a showing that counsel made errors so serious

that counsel deprived the petitioner of the counsel guaranteed to the petitioner by the Sixth

Amendment. Id. Second, the deficient performance must have resulted                   in prejudice   so


pronounced       as   to have deprived the petitioner of a fair trial whose outcome cannot be relied

on   as   just. Id. Both showings are necessary before it can be said that the conviction resulted

from a breakdown in the adversarial process that renders the result unreliable. Id. There             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. Fukunaga             1). State, 201.6


Ark. 164, 489 S.W.3d 644. As we             discuss   below, counsel's performance was not deficient,

so we decline to address whether Sandrelli suffered prejudice.

            "There is a strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance, and the petitioner has the burden             of overcoming that

presumption by identifying the acts and omissions of counsel which, when viewed from

counsel's perspective at the time          of trial, could not have been the result of reasonable

professional    judgment." Feuget,2015 Ark. 43, at 4,454 S.W.3d at738. "Matters of trial

strategy and tactics, even         if   arguably improvident, fall within the realm      of   counsel's

professional judgment and are not grounds for a finding ofineffective assistance of counsel."

Noel u. state,342       Ark. 35, 41,-42,26 S.W.3d        1.23, 1.27 (2000).

           Sandrelli's argument on appeal takes issue        with the circuit court's performance as a

fact-finder. For example, he argues that the circuit court "focuses on the points that would

support the trial counsel and ignores the facts that would support the appellant." He

highlights testimony from-Woodrow Star, who testified that he never told Spruell that he
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had reservations about testifying   in the second trial. Sandrelli notes that        Star's testimony

contradicted Spruell's testimony. Flowever,     as   we have repeatedly held, it is axiomatic that

credibility determinations are within the province of the trial court. Williams u. State,2011

Ark.489,385 S.W.3d228. 'When there is a conflict of testimony, it is the trial court's job

ro resolve rt. Atchison u. state,298 Ark. 344,767 S.'W.2d 31,2 (1,989). The circuit coult

credited trial counsel's testimony and concluded that the decision             to call no       character

witnesses was based    on   reasonable professional judgment.          This ruling was not clearly

erToneous.

       'We also affirm on the second point. Sandrelli argues that the court erred when it

"did not address the fact brought forth on the failure to Spruell to get on the record the

decision of appellant to not testi$r." We have held in an earlier case that the failure to make

a record on the waiver of the right to testify does not constitute ineffective assistance              of

counsel. Williams,2011 Ark. 489, at 14, 385 S.W.3d at237         .In   any event, the court credited

Spruell's testimony that Sandrelli agreed      not to testify and found Sandrelli's contrary

testimony unbelievable. Spruell explained that        in the first trial the State did not play       the

video interviews with Sandreili; however, in the second trial, the State did introduce the

video. Spruell was concerned by Sandrelli's demeanor           in the video    as   well   as   the video

interview depicting Sandrelli giving different answers than he gave on cross-examination in

the 6rst trial. Spruell stated that he explained these facts to Sandrelli and that Sandrelli agreed

that he should not testify. The circuit court did not clearly err when it found that Spruell's

advice to not testify was based on reasonable professional judgment.

       Affirmed.
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David L. Dunagin, for appellant.

Leslie Rutledge, Att'y Gen., by: Valerie Glover Fortner, for appellee.
