Kelley v. State
Annotate this Case
Download PDF
Cite as 2011 Ark. 175
SUPREME COURT OF ARKANSAS
No.
CR 10-627
Opinion Delivered
ERIC WAYNE KELLEY
Appellant
v.
STATE OF ARKANSAS
Appellee
April 21, 2011
APPELLEE’S MOTION TO DISMISS
APPEAL; PRO SE MOTIONS TO FILE
BELATED BRIEF AND BELATED
RESPONSE TO APPELLEE’S
MOTION [APPEAL FROM PULASKI
COUNTY CIRCUIT COURT, CR
2005-5176, HON. CHRIS PIAZZA,
JUDGE]
APPEAL DISMISSED; MOTIONS
MOOT.
PER CURIAM
On December 13, 2006, appellant Eric Wayne Kelley was convicted by a Pulaski
County jury of rape, and he was sentenced to life imprisonment. On appeal, this court
reversed the conviction and remanded the case to the trial court. Kelley v. State, 371 Ark. 599,
269 S.W.3d 326 (2007) (“Kelley I”). Appellant was retried, was convicted again on August
27, 2008, and was sentenced to forty-seven years’ imprisonment in the Arkansas Department
of Correction. We affirmed. Kelley v. State, 2009 Ark. 389, 327 S.W.3d 373 (“Kelley II”).
In September of 2009, appellant timely filed in the trial court a petition for
postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010), in which
he alleged that trial counsel in Kelly II had been ineffective. He then filed a “Motion to Attach
Cite as 2011 Ark. 175
Addendum to Rule 37.1 Petition,” which included additional bases for postconviction relief.1
Following a hearing on January 26, 2010, the trial court denied relief on appellant’s Rule 37.1
petition. Appellant timely filed a notice of appeal from the trial court’s order, and his brief was
due in this court no later than August 2, 2010.
On September 16, 2010, the appellee State filed a motion to dismiss appellant’s appeal,
noting that no brief had been filed by appellant as of the date the motion to dismiss was filed.
Appellant then filed a pro se motion to file a belated appeal brief, with which he tendered his
brief, and a pro se motion to file a belated reply to the State’s motion to dismiss. The State’s
motion to dismiss and both of appellant’s pro se motions are now before us.
Because it is clear that appellant could not prevail if his appeal were allowed to
proceed, we dismiss the appeal, and we need not reach the merits of the parties’ respective
motions, which are all accordingly moot. An appeal from an order that denied a petition for
postconviction relief will not be permitted to proceed where it is clear that the appellant could
not prevail. Delamar v. State, 2011 Ark. 87 (per curiam); Morgan v. State, 2010 Ark. 504 (per
curiam); Goldsmith v. State, 2010 Ark. 158 (per curiam); Watkins v. State, 2010 Ark. 156, ___
S.W.3d ___ (per curiam); Meraz v. State, 2010 Ark. 121 (per curiam).
This court does not reverse a denial of postconviction relief unless the trial court’s
findings are clearly erroneous. Ewells v. State, 2010 Ark. 407 (per curiam) (citing Jamett v.
1
Nothing in the trial court’s order denying relief states whether this motion to file an
overlength petition was granted. However, because one of the grounds for relief discussed in
the trial court’s order was contained only in the addendum, we treat the motion as if it had
been granted.
2
Cite as 2011 Ark. 175
State, 2010 Ark. 28, ___ S.W.3d ___ (per curiam)). 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.
Watkins v. State, 2010 Ark. 156 (per curiam); Polivka v. State, 2010 Ark. 152, ___ S.W.3d
___.
In an appeal from a trial court’s denial of postconviction relief on a claim of 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. Ewells, 2010 Ark. 407, at 2. Under the two-pronged
Strickland test, a petitioner raising a claim of ineffective assistance 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. Smith v. State, 2010
Ark. 137, at 2, ___ S.W.3d ___, ___. There is a strong presumption that trial counsel’s
conduct falls within the wide range of reasonable 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. McCraney v. State, 2010 Ark. 96, ___
S.W.3d ___ (per curiam).
As to the second prong of Strickland, the claimant must demonstrate that counsel’s
deficient performance prejudiced his defense to such an extent that the petitioner was
3
Cite as 2011 Ark. 175
deprived of a fair trial. See id. 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. Ewells, 2010 Ark. 407, at 3. A reasonable probability is a probability sufficient
to undermine confidence in the outcome of the trial. Id.
As grounds for relief in his original Rule 37.1 petition, appellant alleged ineffective
assistance of counsel in Kelley II based upon counsel’s failure: (1) to fully investigate the nature
of his prior convictions and to offer proof of the exact nature of those convictions; (2) to
object to the instruction given to the jury regarding Arkansas Rule of Evidence 404(b); (3)
to object to certain documentary evidence as being improperly verified or untimely; (4) to
object to the introduction of documentary evidence of prior convictions as being in violation
of Arkansas Code Annotated § 16-90-204 (Repl. 2006) and to preserve this issue for review
on appeal “under the constitutional standard of harmless beyond a reasonable doubt.”
Appellant’s addendum to his Rule 37.1 petition added allegations that counsel was ineffective
for failing to prevent the introduction of telephone calls as being too prejudicial,
unauthenticated, and recorded in violation of federal wiretapping laws, and trial counsel was
also ineffective for seeking a limiting instruction regarding certain testimony.2
The trial court’s order denying relief on appellant’s petition stated that appellant’s
arguments based on the alleged failure of trial counsel to fully investigate appellant’s prior
convictions and counsel’s failure to object to the introduction of those prior convictions were
2
Appellant’s addendum to his Rule 37.1 petition also reiterated trial counsel’s failure to
preserve the issue of “harmless error beyond a reasonable doubt” for appellate review.
4
Cite as 2011 Ark. 175
without merit; it was a matter of trial strategy to keep the details of the prior convictions
vague, and trial counsel did argue to keep these convictions out of evidence. In fact, as the
trial court’s order noted, this argument was successful on direct appeal to this court, where we
determined that the convictions should not have come in, but that their admission was
harmless error in light of the voluminous evidence of appellant’s guilt. Kelley II, 2009 Ark.
389, 327 S.W.3d 373.
Regarding appellant’s argument that trial counsel was ineffective for allowing phone
calls to be introduced into evidence, the trial court determined that this was also a question
of trial strategy. Trial counsel testified at the Rule 37.1 hearing that she did, in fact, argue that
the calls should be kept out of evidence because they were too prejudicial, and she found no
merit in appellant’s contentions that the calls were not properly authenticated or that they
violated federal wiretapping laws.
Based on our review of the record before us, we cannot say that the trial court’s
findings on these two points were clearly erroneous. Nothing in appellant’s petition
established that trial counsel’s decision as to either issue could not have been the result of her
reasonable professional judgment. McCraney v. State, 2010 Ark. 96, ___ S.W.3d ___ (per
curiam). Where the trial court has determined a decision by counsel was a matter of trial
tactics or strategy, and that decision is supported by reasonable professional judgment, then
counsel’s decision is not a basis for relief under Rule 37.1. See Chambliss v. State, 2011 Ark.
12.
5
Cite as 2011 Ark. 175
As to appellant’s argument that counsel was ineffective for failing to object to the
instruction given to the jury regarding the evidence of prior convictions under Rule of
Evidence 404(b), the trial court found that appellant failed to demonstrate what other
argument trial counsel should have made or what other instruction should have been given.
The trial court correctly found that the instruction given was part of the Arkansas Model Jury
Instructions – Criminal (2d Edition).
Our holdings have created a presumption that the model instruction is a correct
statement of the law. Thomas v. State, 370 Ark. 70, 257 S.W.3d 92 (2007). As such, any party
who wishes to challenge the accuracy of a model instruction must rebut the presumption of
correctness. See McCoy v. State, 348 Ark. 239, 74 S.W.3d 599 (2002). As he offered nothing
in the way of an alternate interpretation of the law or an alternate instruction that could have
been given, appellant did not meet his burden on this point.
Finally, the trial court determined that appellant’s argument that trial counsel and
appellate counsel should have argued the harmless-error-beyond-a-reasonable-doubt standard
for the admission of his prior convictions under Rule 404(b) was without merit because
appellant did not establish what argument or objection counsel could have made to the
evidence that would made this standard appropriate. Appellant’s original Rule 37.1 petition
states only that “counsel should have made a constitutional objection to the admission of the
prior convictions at trial or on appeal,” and that the admission “violated due process” because
it was a “structural trial error not subject to the harmless error analysis.”
6
Cite as 2011 Ark. 175
Appellant did not cite to any relevant case law that would support his claim, nor did
he make an otherwise cogent and persuasive argument on this point. 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.
Delamar v. State, 2011 Ark. 81; Eastin v. State, 2010 Ark. 275; Watkins v. State, 2010 Ark. 156,
___ S.W.3d ___.
The trial court’s order denying relief does not contain rulings by the trial court on
appellant’s remaining claims. It is the obligation of an appellant to obtain a ruling from the
trial court in order to preserve an issue for appellate review. McCraney, 2010 Ark. 96, ___
S.W.3d ___; Beshears v. State, 340 Ark. 70, 72, 8 S.W.3d 32, 34 (2000); see Howard v. State,
367 Ark. 18, 31, 238 S.W.3d 24, 35 (2006). Arkansas’s rules of procedure provide an avenue
for an appellant to obtain a ruling from the trial court should the court fail to rule on an issue
in its initial order. Ark. R. Crim. P. 37.3 (2009); see Beshears, 340 Ark. at 73, 8 S.W.3d at 34.
Failure to obtain a ruling precludes our review of that argument on appeal. Beshears, 340 Ark.
at 72, 8 S.W.3d at 34; Huddleston v. State, 347 Ark. 226, 230, 61 S.W.3d 163, 167 (2001).
Based on all of the foregoing, it is clear that appellant could not prevail on appeal. His
appeal is accordingly dismissed, and all motions in this case are moot.
Appeal dismissed; motions moot.
7
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.