Small v. State, 371 Ark. 244

Summary

The Supreme Court of Arkansas reviewed the denial of Gregory M. Small’s pro se petition for post-conviction relief under Arkansas Rule of Criminal Procedure 37.1. Small raised twelve ineffective-assistance-of-counsel claims concerning witness testimony, charging delay, offense merger, evidentiary issues, jury instructions, confrontation, and plea negotiations. The court held that the trial court did not clearly err in denying relief without a hearing.

Holdings

1. The trial court did not clearly err in denying Small's ineffective-assistance claims because he failed to establish deficient performance and resulting prejudice under Strickland.
2. The rape, attempted rape, and second-degree sexual-assault counts were separate offenses rather than a single continuing offense because the acts were different in nature and separate in time.
3. Counsel was not ineffective for failing to argue that the absence of DNA evidence rendered the evidence insufficient because uncorroborated testimony of a rape victim may support a conviction if it satisfies the statutory elements.
4. Small failed to establish ineffective assistance based on counsel's alleged failure to convey a counteroffer because he did not show that the State would have accepted the counteroffer or extended the original offer, or that he suffered prejudice.

Questions Presented

1. Whether the trial court clearly erred in denying Small's Rule 37.1 claims that trial counsel was ineffective for failing to call or investigate witnesses.
2. Whether counsel was ineffective for failing to challenge the delay in filing charges.
3. Whether counsel was ineffective for failing to preserve a claim that the three offenses constituted one continuing offense.
4. Whether counsel was ineffective regarding challenges to the investigation, allegedly perjured testimony, lack of DNA evidence, prior sexual conduct evidence, alternative-sentencing instructions, prosecutorial closing argument, the victim's position while testifying, and the exclusion of statements by Small's father.
5. Whether counsel was ineffective for failing to convey a counteroffer during plea negotiations.

Disposition

affirmed