rehearing">

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING FEBRUARY 10, 2000

Donald L. Corbin, Justice.

Our decision affirming the trial court’s order was delivered on January 6, 2000. Appellant filed a petition for rehearing on January 24, 2000. In the petition, Appellant asserts that we erred as a matter of law by applying the wrong standard for showing prejudice on a claim of ineffective assistance of counsel. Our opinion reflects in part:

Jones candidly concedes that counsel’s failure to object to Beckett’s testimony did not prejudice him during the guilt phase, ostensibly because the jury heard evidence of his confession to police, as well as the testimony of the surviving victim. He contends, however, that had this testimony been excluded, his sentence could have turned out differently. The fact that his sentence could have been different is not the standard. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that counsel’s deficient performance prejudiced his defense. Dillard, 338 Ark. 571, 998 S.W.2d 750. Prejudice is shown only when the decision reached would have been different absent the errors. Id.

See Jones v. State, 340 Ark. 1, 10, 8 S.W.3d 482 (2000). Appellant asserts that the test under Strickland v. Washington, 466 U.S. 668 (1984), is not that the outcome would have been different, but that there is a reasonable probability that the outcome would have been different. Appellant is correct in his recitation of the standard established in Strickland. His argument, however, misses the point of our holding.

Our decision affirming the trial court’s denial of relief under Ark. R. Crim. P. 37 was not based on the degree to which Appellant failed to show that the outcome of his case would have been different. Rather, we affirmed because Appellant did not even use the word “would” in his argument to this court. He merely argued that “[i]n this case the proceeding could have turned out differentlyf.]” His argument was thus nothing more than a contention that the result might possibly have been different. This is insufficient under Strickland, as the Court observed that “not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.” 466 U.S. at 693.

Accordingly, we deny rehearing of this case. We issue this supplemental opinion for the purpose of clarifying for future cases that the standard for showing prejudice on an ineffective-assistance-of-counsel claim is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

SMITH, J., not participating.

Citation profile

Relationships

How this case has been treated — in progress