Nutt v. State
| Decision Date | 26 February 2020 |
| Docket Number | No. CR-19-294,CR-19-294 |
| Citation | 594 S.W.3d 907,2020 Ark. App. 137 |
| Parties | Jerry NUTT, Appellant v. STATE of Arkansas, Appellee |
| Court | Arkansas Court of Appeals |
Jerry Nutt, pro se appellant.
Leslie Rutledge, Att’y Gen., by: David L. Eanes, Jr., Ass’t Att’y Gen., for appellee.
Jerry Nutt appeals from the Pulaski County Circuit Court’s order denying his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. Having reviewed the evidence in the record and the testimony of Nutt’s former counsel, we hold that the circuit court did not err by denying postconviction relief and we affirm.
Nutt was charged with one count of rape of a minor child as well as related felony offenses of trafficking of a minor for sex, computer exploitation of children, and sentencing enhancements. At a hearing on June 12, 2017, Nutt entered a negotiated guilty plea to an amended single charge of rape by forcible compulsion and an enhancement for being a habitual criminal. In exchange for the plea, the prosecutor nolle prossed the other felony charges and a two-strike enhancement.
On the record, Nutt stated his understanding and acceptance of the charges and the plea, and he acknowledged the waiver of a jury trial and related rights as well as his opportunity to consult with counsel. He executed a plea statement to the same effect. The circuit court accepted the prosecutor’s recommended sentence of twenty years’ imprisonment. The sentencing order was entered on June 21, 2017.
On September 12, 2017, Nutt filed a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2017). He asserted various claims of ineffective assistance of counsel. The circuit court held a hearing on the petition on February 16, 2018, and entered an order denying postconviction relief on July 9, 2018. Nutt filed an untimely notice of appeal. He then tendered the record and filed a pro se motion with the Arkansas Supreme Court seeking permission to file a belated appeal. Our supreme court granted the belated appeal and transferred the case to our court. It is now properly before us, and we turn to the merits of Nutt’s appeal.
In his pro se brief on appeal, Nutt argues his trial attorney was ineffective for not adequately investigating the facts of the case and for failing to share discovery about those facts prior to advising him to plead guilty. He adds a claim, not argued below, that during the Rule 37 hearing, his former counsel gave "incompetent [and] false testimony" that, he argues, unconstitutionally and prejudicially undermined the outcome of the postconviction proceeding. For the following reasons, we affirm.
Our standard of review in Rule 37 petitions is well settled. On appeal from a circuit court’s ruling on a petitioner’s request for Rule 37 relief, this court will not reverse the circuit court’s decision granting or denying postconviction relief unless it is clearly erroneous. Wood v. State , 2015 Ark. 477, at 2–3, 478 S.W.3d 194, 197. 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.
For claims of ineffective assistance of counsel, we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In asserting ineffective assistance of counsel under Strickland , the petitioner first must demonstrate that counsel’s performance was deficient. Watson v. State , 2014 Ark. 203, at 3, 444 S.W.3d 835, 838–39. This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Id. The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.
Second, the petitioner must show that the deficient performance prejudiced the defense, which requires a demonstration that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id. This requires the petitioner to show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.
On appeal, although Nutt initially complains of a "coerced" guilty plea, the substance of his claim alleges ineffective performance by his appointed counsel in advising him prior to entering his guilty plea. Nutt contends the DNA analysis of semen samples "conclusively excluded" him as a potential donor, and his trial counsel failed to advise him of this or to share discovery of this fact and instead advised that the DNA evidence was incriminating. He also maintains that his trial counsel inadequately advised him regarding the limits and reliability of one of the types of DNA analysis performed––Y-STR analysis. Nutt further alleges that his counsel failed to provide him with discovery, withholding "vital evidence" from Nutt.
Nutt’s claims lack merit, and the denial of postconviction relief is affirmed. When a defendant pleads guilty, the only claims cognizable under Rule 37.1 are that the plea was not made voluntarily or intelligently or that it was entered without the advice of competent counsel. E.g. , Mancia v. State , 2015 Ark. 115, at 11, 459 S.W.3d 259, 267. The burden is entirely on the claimant to provide facts that affirmatively support any claim of prejudice; neither conclusory statements nor allegations without factual substantiation are sufficient to overcome the presumption that counsel was effective, and such statements and allegations will not warrant granting a Rule 37.1 petition. E.g. , Winters v. State , 2014 Ark. 399, at 6, 441 S.W.3d 22, 26–27. The defendant’s later belief that he made a mistake by pleading guilty is not a basis for setting aside the plea. E.g. , Akin v. State , 2011 Ark. 477, at 3, 2011 WL 5437536 (per curiam). A defendant who, when pleading guilty, represents to the circuit court that he understands his rights and that there is no force or compulsion will not later be allowed to dispute those representations in postconviction proceedings. E.g. , Green v. State , 362 Ark. 459, 467, 209 S.W.3d 339, 343 (2005).
In making a determination of ineffective assistance of counsel, the totality of the evidence must be considered. Springs v. State , 2012 Ark. 87, at 3, 387 S.W.3d 143, 147. Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Sales v. State , 2014 Ark. 384, at 6, 441 S.W.3d 883, 887. We also recognize that "there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one." See id. (quoting Strickland , 466 U.S. at 697, 104 S.Ct. 2052 ).
Nutt’s claim regarding ineffective assistance does not demonstrate a constitutionally deficient performance by his trial counsel or a showing of prejudice as required by Strickland . Nutt does not dispute that he admitted he committed the rape when he pleaded guilty to the charge in open court and signed a plea agreement to that effect. Moreover, Nutt represented that he understood his rights and had not been coerced or compelled into entering the plea.
Nutt’s contentions fail to overcome the...
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...he failed to get a ruling from the trial court. This failure precludes us from reviewing it on appeal. See Nutt v. State , 2020 Ark. App. 137, at 8, 594 S.W.3d 907, 912. Accordingly, Britt cannot demonstrate the necessary prejudice under Strickland . Next, Britt argues that Moon was ineffec......
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...Because Matlock failed to make this particular argument below or get a ruling on it, it is not preserved for review. Nutt v. State , 2020 Ark. App. 137, 594 S.W.3d 907. Third, Matlock argues that trial counsel should have used the victim's initial statement to police to challenge the victim......
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Nutt v. Payne
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