State v. Barrett, CR 06-1490.

Decision Date27 September 2007
Docket NumberNo. CR 06-1490.,CR 06-1490.
Citation263 S.W.3d 542,371 Ark. 91
PartiesSTATE of Arkansas, Appellant, v. Roger Dale BARRETT, Appellee.
CourtArkansas Supreme Court

Mike Beebe, Att'y Gen., by: David R. Raupp, Sr. Ass't Att'y Gen., and Kent G. Holt, Ass't Att'y Gen., for appellant.

Joel O. Huggins, Elizabeth Huggins, Springdale, for appellee.

JIM GUNTER, Justice.

Appellee Roger Dale Barrett was convicted of the capital murder of Eunice "Yogi" Bradley and received a sentence of life imprisonment without the possibility of parole in the Arkansas Department of Correction. We affirmed the conviction in Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). Subsequently, Barrett filed a petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure (2007). After a Rule 37 hearing, the circuit court ruled that Barrett was entitled to postconviction relief. The State appeals from the circuit court's rulings. We affirm.

A recitation of the facts is provided in our prior opinion. See Barrett, supra. Following a four-day jury trial during which Barrett was convicted of capital murder, the circuit court entered a judgment and commitment order on September 21, 2001, and an amended order was filed on December 17, 2001. On December 12, 2003, Barrett filed a petition for postconviction relief in which Appellee made the following allegations of error: (1) that trial counsel, Johnny E. Gross, was ineffective in failing to formulate any kind of trial strategy; (2) that trial counsel was ineffective because he failed to discuss with Barrett his right to testify; (3) that trial counsel was ineffective because he refused to communicate with the prosecuting attorney in an effort to negotiate a fair plea agreement; (4) that trial counsel was ineffective because of his failure to interview witnesses; (5) that trial counsel was ineffective in failing to communicate with Barrett regarding any type of trial strategy, tactics, or defenses; (6) that trial counsel was ineffective in failing to discuss with Barrett the potential petit jurors in Barrett's case; (7) that trial counsel was ineffective and "misled" Barrett by telling him that the Benton County Public Defender's Office failed to do "a good job"; (8) that trial counsel was ineffective because of his failure to go to the scene with Barrett; (9) that trial counsel was ineffective and worked under a conflict of interest because his office advised Barrett's wife, Nola Barrett, a possible suspect, to plead the Fifth Amendment; (10) that trial counsel was ineffective because he never prepared a mitigation case for sentencing purposes; and (11) that trial counsel was ineffective in his failure to advise Barrett of the State's plea offer. The State filed a response on October 18, 2004.

A two-day evidentiary hearing was held on Barrett's Rule 37 petition on February 8 and February 10, 2006. In an order dated December 18, 2006, the circuit court made the following rulings: (1) granting a new trial on Barrett's first claim that trial counsel failed to formulate any kind of trial strategy and did not use reasonable professional judgment; (2) granting a new trial on Barrett's second claim that trial counsel failed to advise, counsel, and communicate with Barrett his right to testify; (3) denying Barrett's third claim that he was prejudiced by trial counsel's failure to pursue a plea agreement, because the State did offer a reasonable plea; (4) denying Barrett's fourth claim that his sentence would not have been lessened had the jury heard the testimony of witnesses whom Barrett claimed trial counsel failed to interview; (5) denying Barrett's fifth claim that trial counsel failed to communicate, because Barrett did not demonstrate that there would be a different result; (6) denying Barrett's sixth claim regarding trial counsel's selection of the jury; (7) granting a new trial based upon Barrett's allegation that trial counsel solicited his case away from his public defender by "badmouthing" the public defender and misleading Barrett; (8) denying Barrett's eighth claim regarding trial counsel's alleged failure to visit the crime scene; (9) granting new trial on Barrett's ninth claim that trial counsel's performance was significantly affected by his conflicting interests with Nola Barrett; (10) denying Barrett's tenth claim that trial counsel's failure to prepare a mitigation case was ineffective because his lack of preparation was not prejudicial to Barrett; and (11) granting Barrett a new trial on his eleventh claim for trial counsel's failure to communicate a plea offer.

On October 31, 2006, the State filed a notice of appeal from an order dated October 9, 2006. The State filed an amended notice of appeal on December 20, 2006. The State now seeks to appeal the December 18, 2006, order based upon Rule 2(a)(3) of the Arkansas Rules of Appellate Procedure—Civil (2006), or Rule 3(b) of the Arkansas Rules of Appellate Procedure— Criminal (2006).

As a threshold matter, we consider whether the State has properly brought its appeal pursuant to Ark. R.App. P.—Crim. 3 (2007). Recently, in State v. Wilmoth, 369 Ark. 346, 255 S.W.3d 419 (2007), we stated:

As this court has frequently observed, there is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State. The former is a matter of right, whereas the latter is not derived from the Constitution, nor is it a matter of right, but is granted pursuant to Rule 3. State v. Boyette, 362 Ark. 27, 207 S.W.3d 488 (2005); State v. Pruitt, 347 Ark. 355, 64 S.W.3d 255 (2002); State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000). When this court addresses an appeal by the State, we first determine whether the correct and uniform administration of the criminal law requires our review. See Rule 3(c); State v. Markham, 359 Ark. 126, 194 S.W.3d 765 (2004); State v. Johnson, 317 Ark. 226, 876 S.W.2d 577 (1994). As a matter of practice, this court has only taken appeals which are narrow in scope and involve the interpretation of the law. State v. Pittman, 360 Ark. 273, 200 S.W.3d 893 (2005); State v. Warren, 345 Ark. 508, 49 S.W.3d 103 (2001).

However, we have recently noted that, when an appeal involves neither a direct nor an interlocutory appeal following a prosecution, but is rather a civil appeal arising from a collateral proceeding, the appeal is civil in nature, and the State is not required to satisfy Rule 3. See State v. Burnett, 368 Ark. 625, 249 S.W.3d 141 (2007). Because the instant case arises from a collateral proceeding, we conclude, as we did in Burnett, supra, that the State need not satisfy Rule 3.

Wilmoth, supra. Therefore, because the State is not required to satisfy Rule 3 in the instant appeal, we then will proceed to the merits of the State's arguments.

For its sole point on appeal, the State argues that the circuit court clearly erred by concluding that Barrett received ineffective assistance of counsel from his trial counsel, John Gross, and by granting Barrett's Rule 37 petition, thereby entitling him to a new trial. Specifically, the State contends that the circuit court erred in granting a new trial based upon the following ineffective-assistance claims: (1) trial strategy, (2) Barrett's right to testify, (3) Gross's solicitation of Barrett's case, (4) conflict of interest, (5) and the State's plea offer.

In response, Barrett argues that the circuit court properly concluded that he received ineffective assistance of counsel. Citing Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973), Barrett asserts that the circuit court's order should be affirmed because the same circuit judge tried the case, entered the order, and presided over the Rule 37 hearing, thereby giving the court the "best possible vantage point from which to evaluate the effectiveness of counsel's assistance to appellant from a review of files and records." Id. at 963, 497 S.W.2d at 2.

We do not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). 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. Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002). In making a determination on a claim of ineffectiveness of counsel, the totality of the evidence before the fact-finder must be considered. State v. Franklin, 351 Ark. 131, 89 S.W.3d 865 (2002). Furthermore, we defer to the trial court's determination of credibility on Rule 37.1 appeals. Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001).

We must determine whether counsel's performance was ineffective under the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003). In Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007), we discussed this standard in detail:

Under the standard set forth in Strickland, supra, to determine ineffective assistance of counsel, the petitioner must show first that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Cook v. State, 361 Ark. 91, 204 S.W.3d 532 (2005).

Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. 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. The petitioner must...

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