Cite as 2016 Ark. 190

No. CR-15-975 

ROY LEE RUSSELL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered April 28, 2016

PRO SE APPEAL FROM THE DESHA 

COUNTY CIRCUIT COURT

[NO. 21CR-15-975]

HONORABLE SAM POPE, JUDGE

AFFIRMED.

PER CURIAM 

In 2013, appellant Roy Lee Russell was found guilty by a jury of second-degree 

battery and of being a felon in possession of a firearm. He was sentenced as a habitual 

offender to 180 months’ imprisonment for the battery offense, and to 480 months’ 

imprisonment for the firearms offense, to be served consecutively. Russell had also been 

charged with, and acquitted of, three counts of kidnapping, one count of aggravated assault, 

and three counts of rape. 

The convictions and sentences were affirmed on direct appeal by the Arkansas Court 

of Appeals. Russell v. State, 2014 Ark. App. 357. The mandate was issued by the court of 

appeals on September 4, 2014. Russell filed a timely verified petition for postconviction 

relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2013) in the trial 

court on September 11, 2014. The trial court dismissed the petition for lack of jurisdiction 

on September 18, 2014. 

SUPREME COURT OF ARKANSAS.
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This court reversed and remanded the case because the trial court failed to address 

Russell’s timely claims for postconviction relief. Russell v. State, 2014 Ark. 530 (per curiam). 

On remand, the trial court subpoenaed Russell’s medical records for consideration and 

concluded that Russell’s claims for ineffective assistance of counsel were not supported by 

the record. Russell brings this appeal. 

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

findings are clearly erroneous. Watson v. State, 2014 Ark. 203, at 2–4, 444 S.W.3d 835, 

838–39. A finding is clearly erroneous when, although there is evidence to support it, after 

reviewing the totality of the evidence, we are left with the definite and firm conviction that 

a mistake has been committed. Id. We assess the effectiveness of counsel under the twoprong standard set forth by the Supreme Court of the United States in Strickland v. 

Washington, 466 U.S. 668 (1984). Id. First, a petitioner raising a claim of ineffective 

assistance must demonstrate that counsel made errors so serious that counsel was not 

functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Id. The 

reviewing court must indulge in a strong presumption that counsel’s conduct falls within 

the wide range of reasonable professional assistance. Id. The defendant claiming ineffective 

assistance of counsel 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. Id. Second, the 

petitioner must show that the deficient performance prejudiced the defense, such that there 

is a reasonable probability that the fact-finder’s decision would have been different absent 
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counsel’s errors. Id. A reasonable probability is a probability sufficient to undermine 

confidence in the outcome of the trial. Id. 

In his first point on appeal, Russell argues that the trial court erred when it denied 

his petition without conducting an evidentiary hearing. It is undisputed that the trial court 

has discretion pursuant to Arkansas Rule of Criminal Procedure 37.3(a) to decide whether 

the files and records are sufficient to sustain the court’s findings without a hearing. Sanders 

v. State, 352 Ark. 16, 25–26, 98 S.W.3d 35, 41 (2003). This court has previously interpreted 

Rule 37.3 to provide that an evidentiary hearing should be held in a postconviction 

proceeding unless the files and record of the case conclusively show that the prisoner is 

entitled to no relief. Id. Where the trial court concludes, without a hearing, that the 

petitioner is not entitled to relief, Rule 37.3(a) requires the trial court to make written 

findings specifying the parts of the record that form the basis of the trial court’s decision. 

Id. If the trial court fails to make such findings, it is reversible error, unless the record before 

this court conclusively shows that the petition is without merit. Id. 

Here, the trial court thoroughly reviewed the record and specifically cited portions 

of the record when reaching its conclusion. Additionally, Russell’s medical records were 

obtained, reviewed, and supplemented into the record for a more thorough assessment. The 

trial court then determined that Russell was not entitled to relief under the Strickland

standard, because the allegations of attorney error were unsupported by the record. The 

trial court did not clearly err in denying the petition without an evidentiary hearing. 

Henington v. State, 2012 Ark. 181, at 6, 403 S.W.3d 55, 60 (conclusory allegations that are 
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4

unsupported by facts do not provide a basis for either an evidentiary hearing or 

postconviction relief). 

Secondly, Russell contends that counsel was ineffective for failing to investigate or 

introduce Russell’s medical records during trial. Russell asserts that the introduction of his 

medical records would have supported his defense that he was not the first aggressor. On 

remand, the trial court subpoenaed Russell’s medical records and thoroughly reviewed them 

before it concluded that their introduction would not have changed the trial’s outcome. 

There was no dispute that Russell was injured in the altercation. Harold Shepherd testified 

that he struck Russell multiple times with the butt of a gun. The medical records were 

merely cumulative evidence that Russell sustained abrasions to his head and face. The 

introduction of the medical records would not have supported Russell’s claim that he was 

not the first aggressor. 

For his next two points, Russell alleges that counsel failed to interview or call 

important fact witnesses and failed to prepare for witnesses. Specifically, Russell complains 

that counsel failed to adequately prepare for the testimony of Dr. Maxwell. Dr. Maxwell 

had been called by the State to testify about the extent of the injuries sustained by the 

victims. Because Dr. Maxwell had also treated Russell, on cross examination counsel asked 

Dr. Maxwell to describe the extent of Russell’s injuries. However, without the medical 

records as a reference, Dr. Maxwell was unable to recall treating Russell. 

Russell contends that the medical records would have enabled Dr. Maxwell to 

describe Russell’s medical treatment and to provide expert medical testimony, as well as to 

provide documentation establishing the severity of Russell’s injuries, which Russell again 
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maintains was crucial to support his defense that he had not been the aggressor. However, 

the extent and severity of Russell’s injuries were presented to the jury for consideration, and 

Russell cannot demonstrate prejudice from the absence of what would have been 

cumulative evidence. The fact that there was a witness who could have offered beneficial 

testimony is not, in and of itself, proof of counsel’s ineffectiveness. Williams v. State, 2015 

Ark. 466, at 6, 476 S.W.3d 800, 806. Rather, the burden is on a petitioner to demonstrate 

prejudice by establishing that the testimony would have changed the trial’s outcome. Id. 

Russell failed to meet this burden. 

For his fifth point on appeal, Russell relies on Arkansas Code Annotated section 5-

1-110(a)(5) and argues that counsel was ineffective when he failed to object to count four, 

aggravated assault of three victims, and count eight, second-degree battery of Holly 

Davidson, in the felony information as “multiplicitous.” Russell maintains that seconddegree battery, which was charged in count eight, was a lesser-included offense of 

aggravated assault, which was charged in count four. The trial court correctly found this 

allegation to be without merit. Russell had been acquitted of count four and thus failed to 

demonstrate that he was prejudiced by counsel’s alleged failure to object to the charges in 

the felony information. To the extent that Russell is alleging that his conviction on count 

eight represented an inconsistent verdict in view of his acquittal on count four, that issue 

was addressed and rejected by the court of appeals. Russell, 2014 Ark. 530, at 2. 

In his sixth point on appeal, Russell argues that counsel was ineffective for failing to 

object to the prosecutor’s closing argument. Russell contends that the prosecutor 

improperly vouched for the victims’ credibility, and counsel unreasonably failed to object. 
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After thoroughly reviewing the closing arguments of both the prosecution and the defense, 

the trial court found no prejudice. The trial court concluded that the prosecutor’s statement 

that he was convinced that a crime had been committed, was made during rebuttal, was 

responsive to defense arguments, and was, therefore, proper under the circumstances. See

Stewart v. State, 2012 Ark. 444, at 5 (holding that it was not an abuse of discretion to overrule 

an objection during closing argument because the prosecution’s argument concerning 

credibility was related to defense counsel’s attacks on witness credibility). Furthermore, it 

is well established that because many lawyers refrain from objecting during opening 

statement and closing argument, absent egregious misstatements, the failure to object during 

closing argument and opening statement is within the wide range of permissible professional 

legal conduct. Sasser v. State, 338 Ark. 375, 391, 993 S.W.2d 901, 910 (1999). Russell’s 

contention that counsel failed to object during the prosecutor’s closing argument does not 

overcome the presumption that counsel’s conduct fell within a wide range of reasonable 

professional assistance. 

For his next point on appeal, Russell claims that counsel was ineffective for failing to 

challenge his “selective prosecution.” According to Russell, the evidence was sufficient to 

charge Harold Shepherd with the same crimes with which Russell was charged and 

convicted. Russell maintains that he and Shepherd are similarly situated and that Shepherd 

was not prosecuted because he is Caucasian, while Russell is African American. 

We have recognized and adopted the federal standard for evaluating a claim of 

selective prosecution, which requires a showing of two elements: (1) proof that the 

government had singled the defendant out for prosecution while others similarly situated 
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were not prosecuted; and (2) proof that the defendant was being singled out based on an 

impermissible motive, such as race, religion, or the exercise of constitutional rights. Owens 

v. State, 354 Ark. 644, 656–57, 128 S.W.3d 445, 452–53 (2003) (citing United States v. 

Wilson, 806 F.2d 171 (8th Cir. 1986)). An allegation of selective prosecution must be 

supported by a specific factual basis before an evidentiary hearing on the matter would be 

warranted. Id. at 659, 128 S.W.3d at 454. In order to establish that a defendant is similarly 

situated, the circumstances must demonstrate that there were no legitimate prosecutorial 

factors justifying the decision to prosecute, such as the strength of evidence against a 

particular defendant and the defendant’s role in the crime. United States v. Venable, 666 F.3d 

893, 901 (4th Cir. 2012). Here, Russell’s allegations are insufficient to establish a factual 

basis for a selective-prosecution claim. The trial court did not clearly err when it concluded 

that counsel was not ineffective for failing to raise a selective-prosecution claim. 

Russell also contends that counsel was ineffective for failing to challenge the 

imposition of consecutive sentences. The record demonstrates that the jury recommended 

consecutive sentences, and the trial court accepted that recommendation. It is well 

established that whether sentences should run consecutively or concurrently lies solely 

within the province of the trial court. Throneberry v. State, 2009 Ark. 507, at 7, 342 S.W.3d 

269, 272. A defendant assumes a heavy burden of demonstrating that the trial judge failed 

to give due consideration to the exercise of his discretion in the matter of the consecutive 

sentences. Id. When a petitioner claiming postconviction relief on this basis fails to explain 

what factual substantiation counsel could have advanced to the court in favor of a concurrent 

sentence, he has not established that counsel was ineffective. Robinson v. State, 2014 Ark. 
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310, at 10, 439 S.W.3d 32, 40 (per curiam). Russell does not set forth facts that would have 

warranted counsel requesting a concurrent sentence. The trial court correctly found that 

counsel was not ineffective for failing to advance a meritless challenge to Russell’s 

consecutive sentences. 

For his final assignment of error, Russell maintains that counsel was ineffective for 

failing to properly challenge the sufficiency of the evidence so that the issue would be 

preserved on direct appeal. The trial court rejected this claim and found that Russell’s 

convictions were supported by substantial evidence. The trial court did not clearly err as 

the record contains sufficient evidence to support Russell’s convictions.

Affirmed. 

Roy L. Russell, pro se appellant. 

Leslie Rutledge, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.