Davis v. State

• Decision Date: 14 March 2013
• Docket Number: No. CR12-431,CR12-431
• Parties: PATRICK LAVELL DAVIS APPELLANT v. STATE OF ARKANSAS APPELLEE
• Court: Arkansas Supreme Court

2013 Ark. 118

PATRICK LAVELL DAVIS APPELLANT

v.STATE OF ARKANSAS APPELLEE

No. CR12-431

SUPREME COURT OF ARKANSAS

Opinion Delivered: March 14, 2013

PRO SE MOTIONS FOR EXTENSION

OF TIME IN WHICH TO FILE BRIEF

AND TO SUPPLEMENT RECORD

[HOT SPRING COUNTY CIRCUIT

COURT, 30CR 09-209, HON. CHRIS E

WILLIAMS, JUDGE]

MOTIONS TO SUPPLEMENT

RECORD GRANTED IN PART,

DENIED IN PART, AND MOOT IN

PART; APPEAL DISMISSED; MOTION

FOR EXTENSION OF TIME MOOT.

PER CURIAM

In 2012, appellant Patrick Lavell Davis filed in the trial court a timely pro se petition under Arkansas Rule of Criminal Procedure 37.1 (2012) that challenged a judgment, affirmed by the Arkansas Court of Appeals, reflecting his conviction on multiple charges-three counts of breaking or entering, two counts of theft of property valued at less than $500, and one count of theft of property valued at $500 or greater but less than $2500- and imposing an aggregate sentence of 480 months incarceration. See Davis v. State, 2011 Ark. App. 561. Following a hearing on the merits, the trial court denied the petition, and appellant lodged this appeal.

After appellant lodged the record in this court, the circuit clerk tendered a supplemental record that included a transcript of the hearing on the Rule 37.1 petition. Appellant then filed a motion for an extension of time in which to file his brief and five othermotions, all five of which indicated an intention to supplement the record.

The first of the five motions to supplement clearly references the supplemental record tendered by the circuit clerk as the item with which appellant would supplement the record. The second motion references the same supplement and other documents that appear to be copies of cited constitutional amendments and cases. The third references the supplement and a number of items that are included in the record of appellant's direct appeal. It also contains what appears to be some argument concerning the merits of some of the issues in the Rule 37.1 petition and attaches a copy of a portion of the information filed in appellant's case, along with some statements that appear to have been made in response to appellant's requests to other circuit clerks for copies of any convictions in those courts. The fourth motion seeks to supplement the record, but it does not specifically identify any items to be included in the record. Instead, that motion requests appointment of counsel. It also includes arguments expanding on, or otherwise concerning the merits of, some issues from the proceedings on the Rule 37.1 petition, and it attaches the same items as the previous motion along with some additional statements from circuit clerks. The fifth and final motion to supplement prays that "the pleading be supplemented in the record." This motion also fails to identify any specific documents to be included in the record, and it appears to request that appellant be permitted to supplement the claims in his Rule 37.1 petition with additional arguments.

To the extent that appellant's motions to supplement the record request that the tendered supplemental record be included in the record before this court, we grant the request. The more complete record of the hearing and proceedings in the court below areclearly relevant to our review of the proceedings. We deny appellant's request to supplement the record with items from the record on direct appeal and certain cited authorities because those items are contained within public records of which this court may take judicial notice. See Lowe v. State, 2012 Ark. 185, at 3, ___ S.W.3d ___, ___ (per curiam) (citing Drymon v. State, 327 Ark. 375, 938 S.W.2d 825 (1997) (per curiam)). Supplementing the record with those documents is therefore unnecessary. The statements from various circuit clerks that appellant would appear to request be included in the record and the new arguments on some of the claims in his petition that he would present are not items that may be considered in our review on appeal. This court has long and consistently held that it cannot, in the exercise of its appellate jurisdiction, receive testimony or consider anything outside of the record below. Lowe, 2012 Ark. 185, ___ S.W.3d ___. We therefore deny appellant's further requests to supplement the record.

The remaining requests in appellant's motions, those for appointment of counsel and for an extension of time in which to file his brief, are made moot because, in the course of our review of the supplemented record to consider appellant's motions, it has become clear that appellant cannot prevail on appeal. An appeal from an order that denied a petition for a postconviction remedy will not be permitted to go forward where it is clear that the appellant could not prevail. Id.

This court does not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous. Tornavacca v. State, 2012 Ark. 244, ___ S.W.3d ___. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, afterreviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. In this case, the trial court found that appellant had failed to present proof to support each of his claims. Those findings were not clearly erroneous, and, regarding some of the claims, the issues were simply not cognizable in proceedings on a Rule 37.1 petition.

In his petition, appellant raised a number of claims of ineffective assistance of counsel and claims that inappropriate reference was made to his testimony in the prosecution's opening statement; that the jury panel was improper; that there was inappropriate communication with the jury during deliberation; that the evidence was insufficient; and that there was a lack of due process concerning the police stop, his apprehension near the crime scene, and the valuation of the stolen property. Claims challenging the sufficiency of the evidence, even if framed as an allegation of ineffective assistance of counsel, are a direct attack on the judgment and are not cognizable in Rule 37.1 petitions. See Scott v. State, 2012 Ark. 199, ___ S.W.3d ___; v. State, 2011 Ark. 461 (per curiam); Delamar v. State, 2011 Ark. 87 (per curiam); see also Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. Appellant's allegations of due-process violations and his other allegations not based upon ineffective assistance of counsel, with two possible exceptions noted below, were based upon alleged trial error that could have been raised on direct appeal and were not cognizable in Rule 37.1 proceedings. See Watson v. State, 2012 Ark. 27 (per curiam) (assertions of trial error, even those of constitutional dimension, must be raised at trial and on appeal); Robertson v. State, 2010 Ark. 300, 367 S.W.3d 538 (per curiam) (allegations of trial error that could have been raised at trial or on appeal may not be raised in Rule 37.1 proceedings). As to the remaining claims in thepetition, appellant failed to demonstrate the requisite prejudice for relief under the rule, and the trial court's findings that appellant failed to provide needed evidence on the claims were not clearly erroneous.

Appellant alleged ineffective assistance of counsel on the bases that counsel failed (1) to object to references to his anticipated testimony in the prosecution's opening statement; (2) to object to the jury panel because two of its members, not seated on the jury rendering the decision, had been victims of the alleged crimes; (3) to object to the passing of notes between the court and the jury during deliberations or require that the notes be included in the record; (4) to communicate a plea offer; (5) to object to the habitual-offender evidence introduced and a mistake made by the prosecution in the original information regarding the previous convictions; and (6) to object to evidence introduced on the basis that a chain of custody had not been maintained. In order to establish a claim of ineffective assistance of counsel on any of these claims, appellant was required to prove that he was prejudiced by the alleged error.

Actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. Pennington v. State, 2013 Ark. 39 (per curiam). We assess the effectiveness of counsel under the two-prong standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Id. Under the Strickland test, a claimant must show that counsel's performance was deficient, and the claimant must also show that the deficient performance prejudiced the defense to the extent that the appellant was deprived of a fair trial. Strain v. State, 2012 Ark. 42, ____S.W.3d ____ (per curiam). A claimant must satisfy both prongs of the test, and it is not necessary to determine whether counsel was deficient if the petitioner fails to demonstrate prejudice as to an alleged error. Pennington, 2013 Ark. 39 (citing Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam); Kelley v. State, 2011 Ark. 504; Mitchem v. State, 2011 Ark. 148 (per curiam)).

Appellant's first claim of ineffective assistance of counsel alleged error in counsel's failure to object during opening statements to comments by the prosecutor that appellant asserts were comments on the defendant's anticipated testimony. This issue was, however, raised and settled on direct appeal. The court of appeals concluded that no objection was necessary for its review if the comment was one referring to the defendant's failure to testify and that the comment was not such a reference. Davis, 2011 Ark. App. 561, at 4-5. If counsel had raised an objection to the comment on this basis, the objection would have failed. A petitioner does not demonstrate the requisite prejudice for a claim of ineffective assistance based on the failure to make an objection if he does not establish that counsel could have made a...