Flemons v. State

• Decision Date: 15 December 2016
• Docket Number: No. CR–14–416,CR–14–416
• Parties: Aaron FLEMONS, Appellant v. STATE of Arkansas Appellee
• Court: Arkansas Supreme Court

2016 Ark. 460

505 S.W.3d 196

Aaron FLEMONS, Appellant

v.STATE of Arkansas Appellee

No. CR–14–416

Supreme Court of Arkansas.

Opinion Delivered: December 15, 2016

Aaron A. Flemons, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., Little Rock, for appellee

PER CURIAM

In 2012, a Sebastian County Circuit Court jury found appellant Aaron Flemons guilty of three counts of delivery of cocaine and one count of delivery of a counterfeit substance, and he received an aggregate sentence of 552 months' imprisonment in the Arkansas Department of Correction. The judgment reflected sentence enhancements for Flemons's habitual-offender status and, for the cocaine delivery charges, proximity to a church or park. The Arkansas Court of Appeals affirmed the judgment. Flemons v. State , 2013 Ark. App. 239, 2013 WL 1681775.

In separate proceedings later the same year, Flemons was also convicted of fleeing apprehension and leaving the scene of a personal injury accident in Sebastian County Circuit Court case number CR–11–987, and he received an aggregate sentence of 360 months' imprisonment that was to run consecutively to the sentences imposed in the earlier conviction. The court of appeals also affirmed that judgment. Flemons v. State , 2013 Ark. App. 280, 2013 WL 1857690.

Flemons filed timely pro se petitions for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2015) as to both judgments, and he later filed amended petitions in both matters. The trial court consolidated the proceedings, held a hearing on the petitions, and entered a single order denying both petitions as amended. Flemons appeals that order. We affirm.

On appeal, Flemons's first three points challenge the trial court's denial of his motions for a continuance, for appointment of counsel, and for a copy of certain trial transcripts. Flemons first asserts that the trial court erred in denying his two requests for a continuance on the day of the Rule 37 hearing. Flemons contends that he was denied due process when the court failed to grant a continuance because he had been given incorrect information by the clerk's office about the procedures for having subpoenas issued for his witnesses.

The general standard of review for an alleged error in denying a motion for continuance is abuse of discretion. Green v. State , 2012 Ark. 19, 386 S.W.3d 413. Arkansas Rule of Criminal Procedure 27.3 (2015) provides that a court shall grant a continuance only on a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case. The burden of establishing an abuse of the trial court's discretion is the appellant's, and, in addition to demonstrating that the court abused its discretion by denying the motion, the appellant must show prejudice that amounts to a denial of justice. Riddell v. State , 2011 Ark. 21, 2011 WL 291870. When a motion for continuance is based on a lack of time to prepare, we consider the totality of the circumstances, and a lack of diligence alone is sufficient cause to deny a continuance. Thomas v. State , 370 Ark. 70, 257 S.W.3d 92 (2007).

In this case, Flemons concedes facts that establish a lack of diligence, which is further supported by the record of the proceedings. The trial court granted two earlier requests for a continuance, one from each party. The second such order scheduled the hearing for February 12, 2014. Flemons admitted in a motion that he filed January 9, 2014, that he delayed taking any action to obtain witnesses or evidence because he had been confident that his motion for appointment of counsel filed in November 2013, would be granted, although it was not. He also asserted in his request to the trial court at the Rule 37 hearing that he had delayed action because of his unfounded belief that the pending motion for appointment of counsel would be granted. While he contends that he also delayed action because he wished to amend the petition, both petitions were amended in November 2013.

At that time, Flemons was well aware of all allegations that he would need to support, and he was in a position to seek the necessary subpoenas. Instead, he apparently chose to gamble on the outcome of a pending motion, which he hoped would relieve him of that responsibility. As the trial court explained in its rulings on Flemons's motions made the day of the hearing, his confusion over the clerk's instructions for obtaining subpoenas may have justified some delay if Flemons had acted with diligence to obtain the subpoenas after he had allegedly been given incorrect or confusing information in August 2013. Instead, Flemons did not act on that information until February 2014, shortly before the hearing date and more than two months after he amended the Rule 37.1 petitions. Flemons's lack of diligence as demonstrated by a delay of more than two months from the time that Flemons had fully formulated his claims was sufficient cause for the trial court to deny the motions for continuance.

Flemons next alleges error in the trial court's denial of his motion for appointment of counsel. Flemons contends that he was entitled to counsel to assist him in developing his claims for the Rule 37 proceedings under the United States Supreme Court's holdings in Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) and Trevino v. Thaler , –––U.S. ––––, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). This court has rejected the argument that Martinez and Trevino require appointment of counsel. Mancia v. State , 2015 Ark. 115, 459 S.W.3d 259. The trial court has discretion to appoint counsel under Arkansas Rule of Criminal Procedure 37.3(b) (2015), and, in order to demonstrate an abuse of discretion by the trial court in declining to appoint counsel, an appellant must have made a substantial showing that his petition included a meritorious claim. Walden v. State , 2016 Ark. 306, 498 S.W.3d 725 (per curiam). Flemons did not make such a showing, and there was no abuse by the trial court in denying his motion for appointment of counsel.

Flemons also alleges error in the denial of his requests for a copy of the transcripts of his trials. Indigency alone does not require a trial court to provide a petitioner with free photocopying. Demeyer v. State , 2016 Ark. 9, 2016 WL 192696 (per curiam). To be entitled to a copy of a transcript or other written material at public expense, a convicted defendant must demonstrate to the court a compelling need for the transcript or other material to support a specific allegation contained in a timely petition for postconviction relief. Id. Here, Flemons pointed the trial court to no specific allegations for which there was a compelling need for material from the transcript in order to develop his arguments. He alleged that one transcript was needed to identify inconsistencies in the confidential informant's testimony, but he failed to explain how these inconsistencies would support any specific issue in his petition. Such vague, conclusory declarations did not provide a demonstration of the compelling need required in order to support granting a request for a copy of the transcript.

Flemons's remaining points on appeal are claims that the trial court erred in denying postconviction relief by failing to find ineffective assistance of counsel. This court will not reverse a trial court's decision granting or denying postconviction relief unless it is clearly erroneous. Houghton v. State , 2015 Ark. 252, 464 S.W.3d 922 ; Kemp v. State , 347 Ark. 52, 60 S.W.3d 404 (2001). 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. Turner v. State , 2016 Ark. 96, 486 S.W.3d 757.

When considering an appeal from a denial of a Rule 37.1 petition based on ineffective-assistance-of-counsel claims, the sole question presented is whether, based on the totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in finding that counsel was not ineffective. Taylor v. State , 2013 Ark. 146, 427 S.W.3d 29. The benchmark for judging a claim of ineffective assistance of counsel must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Id.

Our standard for ineffective-assistance-of-counsel claims is the two-prong analysis set forth in Strickland . Rasul v. State , 2015 Ark. 118, 458 S.W.3d 722. Under that standard, to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced his defense. Mister v. State , 2014 Ark. 446, 2014 WL 5494016. Unless a petitioner makes both showings, the allegations do not meet the benchmark on review for granting relief on a claim of ineffective assistance. Houghton , 2015 Ark. 252, 464 S.W.3d 922.

Counsel is presumed effective, and allegations without factual substantiation are insufficient to overcome that presumption. Henington v. State , 2012 Ark. 181, 403 S.W.3d 55. A petitioner claiming deficient performance must show that counsel's representation fell below an objective standard of reasonableness, and this court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. A petitioner has the burden of overcoming the presumption that counsel is effective by identifying specific acts and omissions that, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.

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