Leasure v. State

• Decision Date: 16 July 1973
• Docket Number: No. CR,CR
• Citation: 254 Ark. 961,497 S.W.2d 1
• Court: Arkansas Supreme Court
• Parties: Charles Edgar LEASURE, Appellant, v. STATE of Arkansas, Appellee. 73--71.

Page 1

497 S.W.2d 1

254 Ark. 961

Charles Edgar LEASURE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 73--71.

Supreme Court of Arkansas.

July 16, 1973.

Don Langston, Public Defender, Fort Smith, for appellant.

Jim Guy Tucker, Atty. Gen., by O. H. Hargraves, Deputy Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Leasure's conviction of rape of an eleven-year-old female was affirmed here on January 31, 1972. Leasure v. State, 251 Ark. 887, 475 S.W.2d 535. His request for permission to seek postconviction relief was granted by our per curiam order entered on October 9, 1972. By that order he was restricted to proceeding on his allegations pertaining to ineffective assistance of counsel. His specific allegations in his petition filed in the circuit court in which he was convicted were that: he was without counsel during eleven days of custodial interrogation by police officers prior to arraignment; his court-appointed attorney did not adequately consult with him before trial; his court-appointed attorney, Charles Ledbetter, refused his request for the subpoena of two witnesses not named in the petition; Ledbetter failed and refused to demand a jury trial and directed his efforts toward appellant's entering a plea of guilty; Thomas C. Pitts served as appellant's attorney on appeal under appointment by the circuit court, in spite of appellant's declining his services, and failed to furnish appellant with a copy of the brief filed, so that appellant was unaware of the matters presented to the court on his behalf.

This appeal is taken from the order of the circuit court denying appellant any relief on his petition. The order was based upon an extensive review of the files and record in the case without conducting any hearing but after the judge had requested and been furnished briefs on the matter by the Public Defender and Prosecuting Attorney for Sebastian County. This order was made by the same circuit judge who tried the case, and who, as a result, occupied the best possible vantage point from which to evaluate the effectiveness of appointed counsel's assistance to appellant from a review of files and records. His perspective is far better than ours, because he is not beset by the same difficulties inherent in retrospective appellate evaluation of a cold and unfamiliar record. See Mitchell v. Stephens, 353 F.2d 129 (8th Cir. 1965), cert. denied, 384 U.S. 1019, 86 S.Ct. 1966, 16 L.Ed.2d 1042 (1966). We find no error in the denial of relief to appellant or in denying him an evidentiary hearing.

The most significant and persuasive single factor in our consideration of the question whether Leasure was entitled to an evidentiary hearing is his request to the trial judge after the affirmance here that the very same attorney that he charges with being ineffective in his defense be appointed to represent him in a post-trial proceeding. Not only this, but the record disclosed that Leasure's request for appeal after his trial incorporated a wish that Ledbetter or an attorney equally as 'good' be appointed to conduct the appeal. These circumstances tempt us to label appellant's entire petition as frivolous.

Because of the detailed statement of facts disclosed by the trial judge's review of the record and the extensive statement of his findings and conclusions, we will not elaborate upon each facet of them, but will confine our remarks to the essence of arguments advanced on appeal. At the outset, we reiterate that we will presume, in the absence of a contrary showing, that: a duly licensed, appointed attorney is competent; a charge of inadequate representation can prevail only if the acts or omissions of an accused's attorney result in making the proceedings a farce and a mockery of justice, shocking the conscience of the court, or the representation is so patently lacking in competence or adequacy that it becomes the duty of the court to be aware of and correct it. Davis v. State, 253 Ark. ---, 486 S.W.2d 904 (1972). See also, Franklin and Reid v. State, 251 Ark. 223, 471 S.W.2d 760; Slawek v. United States, 413 F.2d 957 (8th Cir. 1969); Kress v. United States, 411 F.2d 16 (8th Cir. 1969). We also deem it inappropriate, in postconviction proceedings, to grant an evidentiary hearing, when allegations of ineffectiveness of counsel relate only to matters ordinarily within the realm of counsel's judgment, who should have broad latitude in exercising his judgment in the conduct of his client's defense. Poole v. United States, 438 F.2d 325 (8th Cir. 1971); Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787 (1957), cert. denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86 (1958); Taylor v. United States, 282 F.2d 16 (8th Cir. 1960). We subscribe to the principle that the accused has the burden of demonstrating that he was prejudiced by counsel's alleged incompetence and that showing mere errors, omissions or mistakes, improvident strategy or bad tactics will not suffice even to require an evidentiary hearing. Edwards v. United States, 103 U.S.App.D.C. 152, 256 F.2d 707 (1958) cert. denied, 358 U.S. 847, 79 S.Ct. 74, 3 L.Ed.2d 82 (1958); State v. Sinclair, 236 A.2d 66 (Me.1967); Snead v. Smyth, 273 F.2d 838 (4th Cir. 1959); Kress v. United States, supra; Taylor v. United States, supra; 21 Am.Jur.2d 343, 348, Criminal Law, §§ 315, 319.

The reasons for not requiring an evidentiary hearing on every postconviction petition are aptly reviewed in Mitchell v. United States, supra. That court mentioned that such a procedure would disrupt the established function of a trial judge and destroy his impartiality and impair trial counsel of the exercise of independent tactical judgment by requiring the judge, during trial, to direct his attention to the efficacy of defense counsel's trial tactics. It also recognized the devastating effect upon a trial inherent in affording defense counsel an opportunity to correct errors in judgment that might subsequently be suggested during the trial, and the relative impossibility of a retrospective determination that a different course of action would have produced a different result. The court, speaking through Judge Prettyman, said:

It has been repeated so many times as to become axiomatic that convicted felons almost unanimously relish the prospect of putting to public judicial test the competence of their erstwhile defenders; that almost any judge or lawyer can point to potential mistakes in reviewing the record of a lost cause; and that even trial counsel, having lost, can almost invariably enumerate what in the hindsight of disaster appear to have been errors.

Obviously such a proceeding, if permitted generally, would ensue upon almost every guilty verdict; almost every convicted person can think up several points in his trial where the course taken by his lawyer could have been different; and he has nothing to lose by a few extravagant claims.

Trial counsel must make many decisions of an almost infinite variety in the course of a criminal trial: whether to advise a plea to a lesser offense; whether to object; whether to offer a witness of possibly doubtful credibility or with a criminal record; whether to risk crystallizing the view of the judge at that point by a motion for directed verdict before the defense testimony is in; whether to advise the defendant to take the stand and subject himself to cross examination; how to argue the case to the jury; whether to advise the defendant not to go to trial at all but rather to rely upon the mercy of the court. All these and more are practical questions and very real questions. Bad judgment, or even good but erroneous judgment, may result in adverse effects. These are simple facts of trial; they are not justiciable issues.

A convicted person cannot bring about a judicial hearing upon and determination of the trial competence of defense counsel by making allegations which, either on their face or after initial testing for verity, fail to indicate a lack of skill so great that the accused in realistic fact had not a fair trial. An accused cannot bring about a...