Lee v. State

• Decision Date: 21 July 2016
• Docket Number: No. CR-14-923,CR-14-923
• Citation: 2016 Ark. 293,498 S.W.3d 283
• Parties: Terry Antonio Lee, Appellant v. State of Arkansas, Appellee
• Court: Arkansas Supreme Court

2016 Ark. 293

498 S.W.3d 283

Terry Antonio Lee, Appellant

v.State of Arkansas, Appellee

No. CR-14-923

Supreme Court of Arkansas.

Opinion Delivered July 21, 2016

PER CURIAM

Appellant, Terry Antonio Lee, was convicted of committing a terrorist act, attempting to commit first-degree battery, and four counts of aggravated assault. He was sentenced to an aggregate term of 1020 months' imprisonment. The convictions and sentences were affirmed by the Arkansas Court of Appeals. Lee v. State , 2013 Ark. App. 209, 2013 WL 1228756

. The mandate issued on April 16, 2013.

Lee filed a timely pro se petition under Arkansas Rule of Criminal Procedure 37.1

(2015) on May 9, 2013, and filed a second Rule 37.1 petition on June 3, 2013.¹ In both Rule 37.1 petitions, Lee alleged that counsel was ineffective because he failed to prepare or investigate the case; failed to meet with Lee before trial; failed to employ a successful strategy to discredit the testimony of the State's witnesses; failed to strike certain jurors who Lee alleged were biased; failed to object to evidence introduced by the prosecutor that was not timely disclosed in discovery; failed to raise proper directed-verdict motions; failed to object to the trial court pronouncing sentence on the same date as the conviction; and failed to raise a double-jeopardy claim.

In addition to the ineffective-assistance-of-counsel claims cited above, Lee raised the following independent grounds based on allegations of trial error and prosecutorial misconduct: that he was convicted in violation of the prohibition against double jeopardy; that the prosecutor failed to disclose evidence in violation of the rules of criminal procedure; that Lee was illegally arrested in violation of due process; that the trial court failed to hold a competency hearing; that a substituted trial judge was appointed to preside in his case without following correct procedure and was therefore not authorized to conduct the trial; that the trial court failed to afford Lee the right to allocution before sentence was pronounced; that inconsistent verdict forms were submitted to the jury; and that the trial court improperly sentenced Lee to consecutive terms of imprisonment.²

Evidentiary hearings were conducted by the trial court on March 12, 2014, and on March 20, 2014. According to the record, Lee's trial counsel, Bill James, testified at the first hearing, and the second hearing was scheduled for the purpose of presenting testimony of witnesses called by Lee. The record is not clear as to which witnesses might have appeared to testify at the second hearing.

The trial court relied on the pleadings and the testimony of Lee's trial counsel and denied relief in an order filed April 16, 2014. The trial court concluded that claims based on trial error, an illegal arrest, the denial of his right to allocution, inconsistent verdict forms, and consecutive sentences were either not cognizable in a Rule 37.1

proceeding or had been waived on direct appeal. With respect to Lee's ineffective-assistance-of-counsel claims, the trial court concluded that there was no discriminatory pattern in the selection of jurors, that counsel had made appropriate objections at trial, and that counsel had made appropriate motions for directed verdict. In addition, the trial court found that Lee had failed to allege sufficient facts to support his allegations that counsel had failed to object to the timing of his sentencing and that counsel had allowed Lee to be convicted of six felonies for one offense.

Lee filed an untimely notice of appeal on May 19, 2014, which designated the entire record for purposes of appeal. On the same date, the court reporter wrote to Lee, informing him that she would not produce the transcripts from the two hearings conducted in the case until Lee paid $400 because the trial court had not issued an order declaring Lee indigent for appeal purposes. Because Lee failed to pay the cost of the transcript, a partial record was prepared that did not contain the testimony or evidence that may have been introduced at the hearings. On October 28, 2015, Lee filed a motion for belated appeal, together with a petition to proceed in forma pauperis, and the record was tendered on that date. The State did not respond to the motion or to the in forma pauperis petition. Lee's motion for a belated appeal was granted by this court. Lee v. State , 2015 Ark. 26, 2015 WL 314353

. On that date, the partial record was lodged with an affidavit from the court reporter stating that the transcript had not been prepared because Lee had failed to pay for its preparation.

When this court reviews an order that denies postconviction relief, it does not reverse unless the trial court's findings are clearly erroneous. Hayes v. State , 2014 Ark. 104, at 3, 431 S.W.3d 882, 886

. 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. Id. In an appeal from a denial of postconviction relief based 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 in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel's performance was not ineffective. Holloway v. State , 2013 Ark. 140, at 4–5, 426 S.W.3d 462, 466–67. Under the Strickland test, the petitioner must show that counsel's performance was deficient and also that counsel's deficient performance prejudiced the defense. Id.

With respect to the prejudice requirement, a petitioner must demonstrate that there is a reasonable probability that the outcome of the trial would have been different absent counsel's errors. Id. A reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the trial. Id. The burden is also entirely on the appellant to provide facts affirmatively supporting the claims of prejudice. Id.

In its order denying relief based on allegations of ineffective assistance of counsel, the trial court made general findings of fact in support of its conclusion that Lee's counsel was not ineffective. Pursuant to Rule 37.3(c) the trial court must make specific findings so that there can be meaningful review. Reed v. State , 375 Ark. 277, 279, 289 S.W.3d 921, 923 (2008)

. This court has consistently held that it may affirm the denial of a Rule 37.1 petition, regardless of the adequacy of the order, if it can determine from the record that the petition was wholly without merit or that the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted. Walden v. State , 2014 Ark. 10, at 2, 2014 WL 197824 (per curiam); Johnson v. State , 362 Ark. 453, 455, 208 S.W.3d 783, 784 (2005). For the reasons set forth below, it is evident that additional findings by the trial court are warranted with respect to Lee's allegation that counsel was ineffective when he failed to make sufficient motions for directed verdict.

Lee alleged in his two petitions for postconviction relief that counsel was ineffective for failure to properly file directed-verdict motions that challenged the sufficiency of the evidence presented by the State. On appeal, Lee argues that if counsel had filed proper directed-verdict motions the court of appeals would have been able to review the evidence and the “offender's motion would have been granted.” The trial court had rejected Lee's claim and found that “appropriate motions for a directed verdict were made by counsel during trial.” However, this fact-finding is contradicted in ...