Elmore v. State
| Decision Date | 18 February 1985 |
| Docket Number | No. CR,CR |
| Citation | 684 S.W.2d 263,285 Ark. 42 |
| Parties | Sammy Joe ELMORE, Petitioner, v. STATE of Arkansas, Respondent. 85-25. |
| Court | Arkansas Supreme Court |
No brief for petitioner.
No brief for respondent.
Petitioner was found guilty by a jury of attempted capital murder and fleeing. He was sentenced to terms of ten and three years imprisonment in the Arkansas Department of Correction. The Court of Appeals affirmed. Elmore v. State, Ark.App., 682 S.W.2d 758 (1985). Petitioner has now filed a petition for postconviction relief pursuant to A.R.Cr.P.Rule 37 on the allegation that his trial attorney Bob Scott was ineffective.
Petitioner alleges that counsel failed to subpoena witnesses, did not prepare for trial adequately, and was ineffective in the questioning of witnesses. He also contends that there was a conflict of interest because counsel intended to file a civil suit in petitioner's behalf, the outcome of which was likely to be affected by the outcome of the criminal proceeding.
To prevail on an allegation of ineffective assistance of counsel, the petitioner has the heavy burden of overcoming the presumption that counsel is competent. Travis v. State, 283 Ark. 478, 678 S.W.2d 341 (1984). The presumption cannot be overcome without factual substantiation for the allegation sufficient to show that counsel's conduct undermined the adversarial process and resulted in actual prejudice to the degree that petitioner was denied a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner has not met that burden.
Petitioner offers no proof that the civil suit affected counsel's conduct at trial. He also fails to provide in the petition specific instances of poor trial performance beyond the general statement that the questioning of witnesses was inadequate. Petitioner's allegation that counsel did not subpoena witnesses would be deserving of an evidentiary hearing, but petitioner fails to state in the petition what the witnesses' testimony would have been. As a result, we cannot determine whether the witnesses were important to the defense. This Court will not peruse the record in an attempt to determine what factual grounds, if any, exist for an allegation. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983).
Petitioner also contends that the prosecutor offered to recommend a suspended sentence on the fleeing charge and drop the attempted capital murder charge if petitioner would enter a...
To continue reading
Request your trial
-
Young v. State
...226 (N.D.Ohio 1986); United States v. Turchi, 645 F.Supp. 558 (E.D.Pa.1986), affirmed, 815 F.2d 697 (3rd Cir.1987); Elmore v. State, 285 Ark. 42, 684 S.W.2d 263 (1985); Davis v. State, 559 So.2d 630 (Fla. 4th DCA 1990); Martens v. State, 517 So.2d 38 (Fla. 3d DCA 1987), rev. denied, 525 So.......
-
Leach v. State
...to be ineffective assistance of counsel when it is established by the petitioner that the plea was indeed offered. See Elmore v. State, 285 Ark. 42, 684 S.W.2d 263 (1985). We have held, however, that counsel cannot be found to have been ineffective for failure to communicate a plea offer ba......
-
Williams v. Arn
...the denial of the effective assistance of counsel. See, Rasmussen v. Arkansas, 280 Ark. 472, 658 S.W.2d 867 (1983); Elmore v. Arkansas, 285 Ark. 42, 684 S.W.2d 263 (1985); Illinois v. Saunders, 135 Ill. App.3d 594, 90 Ill.Dec. 378, 482 N.E.2d 85 (1985); Illinois v. Whitfield, 40 Ill.2d 308,......
-
Ex parte Wilson
...participation in the decision-making process surrounding his defense. United States ex rel. Caruso v. Zelinsky, supra; Elmore v. State, 285 Ark. 42, 684 S.W.2d 263 (1985); Hanzelka v. State, 682 S.W.2d 385 (Tex.App.--Austin, 1984); Harris v. State, 437 N.Ed.2d 44 (Ind.1982); Curl v. State, ......