Sherman v. State

• Citation: 2014 Ark. 474,448 S.W.3d 704
• Decision Date: 13 November 2014
• Docket Number: No. CR–13–752.,CR–13–752.
• Court: Supreme Court of Arkansas
• Parties: Patrick L. SHERMAN, Appellant v. STATE of Arkansas, Appellee.

2014 Ark. 474

448 S.W.3d 704

Patrick L. SHERMAN, Appellant

v.STATE of Arkansas, Appellee.

No. CR–13–752.

Supreme Court of Arkansas.

Nov. 13, 2014.

Patrick L. Sherman, pro se appellant.

Dustin McDaniel, Att'y Gen. by Eileen W. Harrison, Ass't Att'y Gen., for appellee.

Opinion

PER CURIAM.

Appellant Patrick L. Sherman brings this appeal from two orders, both of which were entered in the Hot Spring County Circuit Court on June 10, 2013, that denied relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013) in Case No. 30CR–12–241 and Case No. 30CR–12–286. In 2013, appellant entered a negotiated plea of guilty in Case No. 30CR–12–241 to fleeing on foot and possession of methamphetamine and to residential burglary and robbery in Case No. 30CR–12–286. He was sentenced as a habitual offender, who had been found guilty of three prior offenses, to an aggregate term of 144 months' imprisonment.

Subsequently, appellant timely filed in the trial court a verified, pro se petition and amended petition for postconviction relief under Rule 37.1 that encompassed both cases. An evidentiary hearing was held in which appellant indicated that he wished the court to deal with the amended petition filed April 23, 2013. Appellant's initial claim raised in the amended petition and argued in this appeal was that he was not afforded effective assistance of counsel when he entered his plea to the four offenses.¹

This court has held that it will reverse the trial court's decision granting or denying postconviction relief only when that decision is clearly erroneous. Conley v. State, 2014 Ark. 172, 433 S.W.3d 234. 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. Caery v. State, 2014 Ark. 247, 2014 WL 2158140 (per curiam); Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694.

When considering an appeal from a trial court's denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on a 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 holding that counsel's performance 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.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Caery, 2014 Ark. 247, 2014 Ark. 247 ; Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). There is a strong presumption that trial counsel's conduct falls within the wide range of professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel's perspective at the time of the trial, could not have been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55 ; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam). Second, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner must show that there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Breeden v. State, 2014 Ark. 159, 432 S.W.3d 618 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in sentencing. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. “[T]here 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.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

Appellant's claims for postconviction relief were limited to those asserting that his plea was not entered intelligently and voluntarily upon advice of competent counsel. Robinson v. State, 2014 Ark. 289, 2014 WL 2931692 (per curiam); Sandoval–Vega v. State, 2011 Ark. 393, 384 S.W.3d 508 (per curiam). By pleading guilty, appellant waived any claim that he was not guilty of the charges. Robinson, 2014 Ark. 289, 2014 WL 2931692. To establish prejudice and prove that he was deprived of a fair trial due to ineffective assistance of counsel, a petitioner who has entered a plea of guilty must demonstrate a reasonable probability that, but for counsel's errors, he would not have entered a guilty plea and would have insisted on going to trial. Robinson, 2014 Ark. 289, 2014 WL 2931692 (citing Scott v. State, 2012 Ark. 199, 406 S.W.3d 1 ). A petitioner who has entered a guilty plea normally will have considerable difficulty proving any prejudice, as the plea rests upon an admission in open court that the petitioner did the act charged. Scott, 2012 Ark. 199, 406 S.W.3d 1. A petitioner under Rule 37.1 must allege some direct correlation between counsel's deficient behavior and the decision to enter the plea. Robinson, 2014 Ark. 289, 2014 WL 2931692.

In his brief, appellant argues that his attorney was ineffective because she did not argue that he was illegally arrested. He further finds fault with counsel's failure to file a pretrial motion to suppress evidence pertaining to certain clothing and the “suspect methamphetamine substance” because the substance was not confirmed by scientific testing to be methamphetamine and because it was not found until after a secondary search of the area where he was arrested. Appellant asserts that he would not have entered a plea of guilty had counsel filed the motions to suppress, presumably because the motions would have resulted in suppression of the evidence seized. Appellant also alleges that counsel should have filed pretrial motions to declare his criminal history void on the ground that the facts of the prior cases would show those judgments to be invalid and to reduce the charge of felony fleeing because the facts would not support a conviction for the offense. Appellant also contends that counsel should have attacked the sufficiency of the evidence to support the fleeing charge and also filed a motion for directed verdict inasmuch as the evidence was insufficient to sustain a conviction for burglary and robbery.

A review of the allegations of ineffective assistance of counsel contained in the petition and discussed at the evidentiary hearing reflects that the crux of most of appellant's assertions was that there was insufficient evidence to convict him of the four felonies to which he pleaded guilty. It is well settled that Rule 37.1 does not provide a means to challenge the sufficiency of the evidence merely because the petitioner has raised the challenge in the guise of an allegation of ineffective assistance of counsel. Nickelson v. State, 2013 Ark. 252, 2013 WL 2460147 (per curiam) (citing Norris v. State, 2013 Ark. 205, 427 S.W.3d 626 ) (per curiam) (The trial court was correct to deny relief on a Rule 37.1 petition where the claims, while framed as allegations of ineffective assistance of counsel, were a challenge to the sufficiency of the evidence because such claims are a direct attack of the judgment and not cognizable under the Rule.).

The record of the guilty-plea hearing in Case No. 30CR–12–241 and Case No. 30CR–12–286 is a part of the record in this appeal. Appellant appeared with counsel and accepted a negotiated plea of guilty to the four felony charges, indicating in answer to the trial court's query that he was satisfied with counsel's representation. The court set out the facts underlying the charges, and appellant admitted that he was guilty of the offenses. As stated, by pleading guilty to the four offenses, appellant waived any claim that he was not guilty of the charges. Moore v. State, 2014 Ark. 231, 2014 WL 2019280 (per curiam). Appellant also admitted at the hearing that he was guilty of more than one and less than four prior offenses as alleged by the State as the basis for charging him as a habitual offender pursuant to Arkansas Code Annotated section 5–4–501(a)(1) (Repl.2011). The judgments were convictions in 1991 for residential burglary and theft of property and convictions in 1995 for battery and fleeing.

With respect to the claim that counsel should have challenged the validity of the 1991 and 1995 judgments for the prior offenses that resulted in appellant's being charged as a habitual offender, counsel testified at the hearing that she examined the prior judgments and found no ground on which to challenge those judgments. Appellant contends that a challenge would have been successful as he was placed in double jeopardy because his 1995 conviction for battery and the fleeing conviction contained a common element. The claim must fail because this court has...