Kevin W. Thomas v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 8, 2001

KEVIN W. THOMAS

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 99-374

AN APPEAL FROM THE CIRCUIT COURT OF HOT SPRING COUNTY,

NO. CR 97-68-1

HONORABLE JOHN W. COLE, JR.,

CIRCUIT JUDGE

AFFIRMED

In 1997, Kevin W. Thomas was found guilty by a jury of theft by receiving and the offense of being a felon in possession of a firearm. He was sentenced as a habitual offender to an aggregate term of 360 months' imprisonment. The court of appeals affirmed. Thomas v. State, CACR 98-335 (Ark. App. November 4, 1998). Thomas subsequently filed in the trial court a timely pro se petition pursuant to Criminal Procedure Rule 37 challenging the judgment. The petition was denied. Appellant raises three issues on appeal challenging the trial court's decision. We affirm.

First, appellant argues that the trial court erred in failing to hold an evidentiary hearing and failed to enter written findings to support its denial of appellant's petition.

Where a petition for Rule 37 relief is filed, the trial court must either grant a hearing on the petition or make a determination from the files and records if they conclusively show that the petitioner is entitled to no relief. If the petition is summarily denied without an evidentiary hearing,the court must make written findings specifying the parts of the files and records relied upon in denying the petition. Brown v. State, 291 Ark. 143, 722 S.W.2d 845 (1987). A trial court may conclude from the record that postconviction relief sought pursuant to Rule 37 should be denied and that no hearing is necessary. Smith v. State, 300 Ark. 291, 778 S.W.2d 924 (1989).

The trial court is not required to hold an evidentiary hearing, even in a case involving the death penalty. We have held that the circuit court need not hold an evidentiary hearing where it can be conclusively shown on the record, or the face of the petition itself, that the allegations have no merit. Bohanan v. State, 327 Ark. 507, 939 S.W.2d 832 (1997) (citing Ark. R. Crim. P. 37.3(a)). Furthermore, conclusory allegations that are unsupported by facts do not provide a basis for either an evidentiary hearing or postconviction relief. Bryant v. State, 323 Ark. 130, 913 S.W.2d 257 (1996). As we stated in Spivey v. State, 299 Ark. 412, 773 S.W.2d 446 (1989):

A claim that prejudice was suffered without any factual explanation about what form the prejudice took or how serious it was is not enough to prove ineffective assistance of counsel. Conclusory allegations which are not supported by a showing of actual prejudice so serious as to deprive the petitioner of a fair trial or a fair appellate proceeding do not warrant an evidentiary hearing.

Clearly, the mere fact that an evidentiary hearing was not conducted is not reason, in and of itself, to warrant reversal of the trial court. Here, the trial court entered specific written findings to support its denial of appellant's petition. In addition, the record conclusively shows that appellant's allegations are not entitled to postconviction relief. Thus, we cannot say that the trial court erred in declining to hold an evidentiary hearing.

Next, appellant argues that counsel was ineffective for failing to subpoena favorable alibi witnesses and material. Appellant contends that the witnesses would have exonerated him.

The trial court noted that the witnesses referred to in appellant's peititon were categorized as alibi witnesses; however, no specific statement of fact concerning the alibi was made. The courtdetermined that such a non-specific allegation could not form the basis for relief. The trial court also found that, even if the alleged alibi witnesses had testified, the uncontroverted evidence against appellant was so strong that the outcome of the trial would not have been different.

Upon review of this issue, we note that appellant has failed to submit any affidavits of the alleged witnesses testimony. We only have appellant's statement as to how these witnesses would testify. A bare allegation that there are witnesses that could have been called in the petitioner's behalf will not support a claim of ineffective assistance of counsel. Decisions involving which witnesses to call to benefit a case lie purely within the realm of counsel's trial tactics. Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984). The petitioner has not shown that counsel's decision not to call any particular witness amounted to more than a strategy decision and, as a result, the allegation provides no basis for Rule 37 relief. In addition, we would note that appellant has failed to demonstrate that counsel's errors undermined the confidence in the outcome of the trial. The petitioner must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Clearly, the trial court found that there was overwhelming evidence to support appellant's conviction despite counsel's alleged errors. We agree.

For his last point on appeal, appellant argues that he was denied due process because the jury was misled by the judge's instructions. All issues raised by appellant under this point were not raised in his Rule 37 petition. Thus, the issues not before the lower court will not be addressed here for the first time. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995); Wiser v. State, 256 Ark. 921, 511 S.W.2d 178 (1974).

Affirmed.