Polivka v. State

• Decision Date: 01 April 2010
• Docket Number: No. CR 08–431.,CR 08–431.
• Citation: 362 S.W.3d 918,2010 Ark. 152
• Court: Arkansas Supreme Court
• Parties: Joseph POLIVKA, Appellant, v. STATE of Arkansas, Appellee.

2010 Ark. 152

362 S.W.3d 918

Joseph POLIVKA, Appellant,

v.STATE of Arkansas, Appellee.

No. CR 08–431.

Supreme Court of Arkansas.

April 1, 2010.

Pro se appellant.

Dustin McDaniel, Att'y Gen., by: Leaann J. Irvin, Ass't Att'y Gen., for appellee.

RONALD L. SHEFFIELD, Justice.

On July 27, 2006, Appellant Joseph Polivka entered an unconditional plea of guilty to two counts of criminal attempt to commit murder in the first degree and one count of possession of a firearm by certain persons. Appellant requested that he be sentenced by a jury, pursuant to Ark.Code Ann. § 16–97–101(6) (1987). After the sentencing proceeding held on August 1, 2006, the jury sentenced Appellant to thirty years' imprisonment in the Arkansas Department of Correction for each count of attempted murder, and five years' imprisonment in the Arkansas Department of Correction for possession of a firearm. The two counts of attempted murder were subject to the felony-firearm sentencing enhancement under Ark.Code Ann. § 16–90–120 (1987), and the jury sentenced Appellant to an additional fifteen years for each count. The circuit court ordered all sentences to be served consecutively, for a cumulative sentence of ninety-five years' imprisonment.

Appellant filed a timely notice of appeal on August 22, 2006. He maintained that his fifteen-year felony-firearm sentencing enhancement for each count of attempted murder was unjust and excessive under Ark.Code Ann. § 16–90–120, because the enhancement effectively resulted in a life sentence. He also argued that he should have been credited for meritorious good time, particularly when the following statute, Ark.Code Ann. § 16–90–121, which allows for such credit. The Arkansas Court of Appeals found that Appellant did not object to the length of the sentences he received at the trial level, and therefore he was barred from appealing them. Also, Appellant's counsel had discussed the possibility of Appellant receiving good time credit with the judge before jury voir dire at the sentencing hearing. Finally, the court of appeals held that Appellant's sentences were in fact not excessive, since the statute expressly permitted a defendant to receive a fifteen-year enhancement for each count. Section 16–90–120 has no provision for crediting meritorious good time, and it is the sole purview of the state legislature, not the court, to introduce such a provision. Polivka v. State, CR 06–1337, 2007 WL 2660247 (Ark.App. Sept. 12, 2007) (unpublished).

Then, on November 7, 2007, Appellant timely filed in the circuit court this verified pro se petition for postconviction relief pursuant to Ark. R.Crim. P. 37.1 (2007). Appellant alleged that he was denied effective assistance of counsel and due process, based on the following points of error: (1) the trial counsel failed to object to a jury instruction relating to parole eligibility, when Appellant would be ineligible for parole pursuant to Ark.Code Ann. § 16–93–609; (2) the trial counsel failed to object to the prosecutor's erroneous statement to the jury that Appellant would likely be released from prison early due to overcrowding; (3) the trial counsel failed to object to the prosecutor's inflammatory statement to the jury that the jury should not believe “one ioda [sic] of what petitioner has told you”; (4) the trial counsel failed to investigate, discover, and present mitigating evidence regarding the effect of prescribed drugs on Appellant's mental state at the time of the crime; (5) the trial court failed to follow Ark. R.Crim. P. 24.4 and 24.6 in accepting Appellant's guilty plea, in that the court failed to ensure that Appellant understood the mandatory minimum and maximum sentences he could receive; (6) the trial counsel failed to adequately prepare for trial, in that he did not visit Appellant frequently enough, or sufficiently discuss the case with Appellant; (7) the trial counsel failed to object to Appellant's sentences on the grounds that they were excessive, and failed to seek leniency and concurrent sentences from the court; and (8) the trial counsel failed to object to the application of the felony-firearm enhancement, Ark.Code Ann. § 16–90–120, which is in conflict with Ark.Code Ann. § 5–6–104.

On February 21, 2008, the circuit court entered an order denying Appellant's petition without a hearing. The court found that the following claims of ineffective assistance of counsel, as alleged by Appellant, did not provide grounds for Rule 37 relief: (1) the trial counsel's failure to object to sentencing jury instructions; (2) the trial counsel's failure to object to the State's sentencing arguments; (3) the trial counsel's failure to present mitigating evidence regarding Appellant's mental health and use of prescription medication; (4) the trial counsel's failure to object to the circuit court's sentencing procedures; (5) the trial counsel's failure to visit with Appellant sufficiently to prepare for trial; and (6) the trial counsel's failure to object to sentences imposed. The court held that the petition, files, and records of the case conclusively showed that Appellant was not entitled to relief. On March 17, 2008, Appellant filed a timely notice of appeal.

Appellant alleges several points on appeal. He maintains that he was denied effective assistance of counsel because his trial counsel (1) failed to prepare adequately for trial; (2) failed to raise the issue of the felony-firearm enhancement; (3) failed to ensure that the court followed Ark. R.Crim. P. 24.4, 24.6 and 24.7; (4) failed to object to a jury instruction on parole and good-time-transfer eligibility; (5) failed to object to the prosecutor's closing comments to the jury; and (6) failed to present mitigating evidence during sentencing. Appellant further asserts that the circuit court erred in dismissing his claims without reviewing the record or conducting an evidentiary hearing.

This court will not reverse a denial of postconviction relief unless the circuit court's findings are clearly erroneous. 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. State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007). In the context of review of a circuit court's denial of postconviction relief on a claim of ineffective assistance of counsel, we look to whether the circuit court clearly erred based on the totality of the evidence. Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007). In this case, we find no error and affirm the decision of the circuit court.

As an initial matter, we must address whether Appellant may assert all of his allegations on appeal. Appellant advances several claims of ineffective assistance of counsel, some of which stem from errors alleged as part of his plea of guilty and some of which stem from errors alleged to have occurred during the subsequent sentencing proceeding. We have frequently held that “on appeal from the denial of a Rule 37 petition following pleas of guilty there are only two issues for review—one, whether the plea of guilty was intelligently and voluntarily entered, two, were the pleas made on the advice of competent counsel.” Branham v. State, 292 Ark. 355, 356, 730 S.W.2d 226, 227 (1987). This rule would seemingly prevent Appellant from arguing any of his claims regarding his counsel's effectiveness during the sentencing hearing.

However, Appellant was sentenced under the Arkansas bifurcated-sentencing statute, Ark.Code Ann. § 16–97–101. We have addressed at length the unique scenario that bifurcation affords in the context of direct appeals:

Under the bifurcation structure, a criminal trial is split into separate and distinct stages, the first of which involves the finding of guilt or innocence. In the event of a finding of guilt, further proceedings are held in which evidence may be presented prior to the setting of sentence.... Thus, it is obvious that this new procedure differs considerably from the prior conduct of trials where the jury assessed both guilt and sentence during one proceeding.

Hill v. State, 318 Ark. 408, 412, 887 S.W.2d 275, 277 (1994). As a result, “sentencing is now, in essence, a trial in and of itself, in which new evidence may be submitted.” Id. at 413, 887 S.W.2d at 277. In Hill, we held that the defendant could appeal the circuit court's decision

to admit certain evidence before the jury during the sentencing phase of the trial, since “the acceptance of this appeal from a plea of guilty does not compromise our rule, for it does not constitute a review of the plea itself. Rather, it provides for a review of nonjurisdictional issues, such as the admission of testimony and evidence authorized by this new statute, which arose during the penalty phase of the trial subsequent to the entry of Hill's guilty plea.” Id. However, we noted that our opinion in Hill applied only to appeals of nonjurisdictional issues, and the court would not “review the imposition of sentence simply where the defendant maintains his sentence is excessive, when in fact his sentence is within the range prescribed by statute for the offense in question.” Id. at 413–14, 887 S.W.2d at 278.

This court extended its discussion of appeals of guilty pleas in Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003), wherein we held that the defendant could appeal the circuit court's sua sponte resentencing after the defendant had pled guilty and had been sentenced already. We affirmed the holding of Hill, that because “sentencing was now a separate proceeding held subsequent to the guilty plea ... errors that occurred in the sentencing proceeding itself could be appealed.” Id. at 400, 94 S.W.3d at 908.

Finally, and most importantly, in Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002), the defendant alleged eight points of error that occurred during the sentencing phase of his trial. Though...