Tornavacca v. State

• Decision Date: 14 August 2012
• Docket Number: No. CR 11–702.,CR 11–702.
• Citation: 2012 Ark. 224,408 S.W.3d 727
• Parties: Michael TORNAVACCA, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2012 Ark. 224

408 S.W.3d 727

Michael TORNAVACCA, Appellant

v.STATE of Arkansas, Appellee.

No. CR 11–702.

Supreme Court of Arkansas.

May 24, 2012.

Rehearing Denied Aug. 14, 2012.

J. Sky Tapp, Tapp Law Offices, Hot Springs, for Appellant.

Dustin McDaniel, Atty. Gen., Karen Virginia Wallace, Asst. Atty. Gen., for Appellee.

COURTNEY HUDSON GOODSON, Justice.

Appellant Michael Tornavacca appeals the order of the Hot Spring County Circuit Court denying his petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure. For reversal, appellant contends that (1) the circuit court erred in finding that he was not deprived of due process upon his discharge from the drug-court program; (2) the circuit court erred in ruling that he did not receive ineffective assistance of counsel when he was terminated from the program; (3) the circuit court erred in finding that he had committed two “strikes” in drug court; and (4) the drug court in Hot Spring County has fundamentally flawed procedures in terms of due process. We have jurisdiction pursuant to Rule 37 and Arkansas Supreme Court Rule 1–2(a)(8). We affirm the circuit court's decision.

The record reflects that on September 22, 2008, the prosecuting attorney in Hot Spring County filed an information charging appellant with theft of property, a class B felony, and theft of property, a class C felony. According to the affidavit for probable cause, appellant drove a truck, which he was hired to wash, without permission from the owner and refused to return it upon the owner's request. The affidavit also stated that a shotgun was inside the truck and that the weapon was not found when the police recovered the vehicle.

On November 24, 2009, appellant entered a negotiated plea of guilty to the offenses for which he would receive the maximum statutory penalties of twenty and ten years in prison, to be served consecutively, in exchange for the opportunity to participate in the drug-court program. At the plea hearing, appellant acknowledged that he was freely and voluntarily entering the guilty pleas; that he had not been coerced; that he was not under the influence of intoxicants; and that he was satisfied with the services of his attorney. Appellant also affirmed that he understood his rights and that, by pleading guilty, he was waiving, among other things, his right to a jury trial, his right to compel the attendance of witnesses, and his right to confront adverse witnesses called by the State. The circuit court also elicited affirmative responses from appellant that he understood the operation of the drug court and that he would serve thirty years in prison if he failed to meet his obligations by garnering three “strikes” in drug court. Appellant also confirmed his understanding that a judgment of conviction would not be entered of record if he successfully completed the program. After establishing a factual basis for the charges, the circuit court accepted the guilty pleas and the recommended sentences totaling thirty years' imprisonment. Pursuant to the plea agreement, the court deferred the entry of judgment pending appellant's successful completion of the drug-court program.

Appellant does not dispute that he acquired his first strike in drug court on June 24, [2012 Ark. 3]2010, when he tested positive for the consumption of alcohol. For this violation, the circuit court sanctioned appellant by requiring him to spend four days in the detention facility. At issue in this appeal is what transpired on November 1, 2010, when the circuit court decided that appellant had committed his second and third strikes. On that date, the circuit court met privately, at what the court refers to as a “staffing,” with members of the drug-court team, consisting of the department of correction probation officer, the administrative assistant to the drug court, a department of correction counselor, a representative of the prosecuting attorney's office, and a public defender, Gregory Crain. After this conference, Crain met briefly with appellant, who was not privy to the matters discussed at the staffing, and then the circuit court addressed appellant in open court. The court announced that, on October 26, 2010, appellant's “color of the day” was called for him to take a drug test; that appellant did not respond; and that he was found drunk that day at a home visit. The circuitcourt also stated that, on October 27, 2010, appellant abused prescription medication by taking “a major dose of pills” that resulted in his hospitalization. Appellant did not contest the incident that occurred on October 26, but he explained to the court that he had a “reaction” to the blood-pressure medicine he had been prescribed and the muscle relaxant he was taking for a pinched nerve; that he was not taking the medicines to “get high”; and that the medication “was taken in confusion.” Appellant requested a second chance to remain in the program, and then the following exchange occurred:

The Court: I'm not giving you another choice. There were statements made at the hospital that are a matter of the hospital records that when you get out you would do it again. When you abuse the medication you were given and were given permission from this Court to take, and then use them in excess.

Appellant: It was not an intentional use to get high. It was in confusion.

THE COURT: Well, it wasn't going to get high. It was going to cause death.

Appellant: It almost did.

The Court: This is the reason you're getting thirty years in the Arkansas Department of Correction. That's what you pled to. That's what you're going to get. That's the order of the Court. You have got strike two and three based upon your action in taking that medication. Mike, I've known you to do great things for this court, but what you have done to yourself and the fear of what you might do even further to yourself because of this, even though you do great things, when you slide back this far, this quick, in two days is a disaster looking for a place to happen. I wish you the best of luck in the world.

On November 8, and November 24, 2010, the circuit court entered a judgment and commitment order and an amended judgment reflecting appellant's earlier guilty pleas to two counts of theft of property and cumulative sentences of thirty years in prison. Both judgments contained the notation that

THE DEFENDANT, HAVING BEEN ACCEPTED INTO DRUG COURT ON 11–24–2009, HAS BEEN FOUND GUILTY OF VIOLATING CERTAIN CONDITIONS OF THE DRUG COURT PROGRAM, THEREFORE ON 11–01–10 THE DEFENDANT WAS INCARCERATED AWAITING BED SPACE AT ADOC, AND IS ORDERED TO SERVE THE SENTENCE TO WHICH HE ORIGINALLY PLED.

On January 27, 2011, appellant filed a petition for postconviction relief, which he amended on January 28, 2011. In the petitions, appellant challenged the factual bases for the circuit court's determination that appellant had committed two strikes in October 2010. He also asserted that he received ineffective assistance of counsel at his “revocation” from the drug-court program.¹

The circuit court conducted a hearing on February 23, 2011. At that time, appellant's counsel offered additional arguments to support his claim for postconviction relief. He asserted that the circuit court issued the final two strikes without a hearing and that the decision was based on information that the court had learned without the taking of testimony. Appellant maintained that, before his expulsion from the program, he was entitled to notice of the allegations and a hearing at which he could exercise the right to confront and cross-examine witnesses brought against him. Further, appellant claimed that Crain, his counsel, was ineffective for not protecting his right to due process.

After appellant summarized his arguments, the circuit court heard testimony from a number of witnesses. First, Crain testified that he was the drug-court public defender in attendance on the day that appellant was suspended from the program. He said that he learned about the proposed strikes at the staffing and that he argued on appellant's behalf that the incidents that occurred on October 26 and 27 should be considered as one strikable offense, instead of two. Crain stated that he spoke with appellant before the hearing and advised him of the allegations. He testified that appellant expressed no desire to call any witnesses and that “appellant seemed to think that he had done enough to get two strikes.” Crain stated that he did not advise appellant of a right to a hearing to rebut the allegations because appellant had waived his rights upon entry to the drug-court program. In his experience, there had never been a hearing regarding the imposition of strikes.

Phyllis Lemons, the public defender who initially represented appellant on the charges, testified that she was not aware that appellant had been given any documentation advising him about what his rights were in drug court. She assumed that drug-court personnel would pass along that information. Lemons stated that the circuit judge gives participants the opportunity to present evidence to refute allegations of misconduct. She said, however, that she did not believe that a hearing was necessary in most instances “because some strikes are so obvious that there is no defense to them.”

John Woolem, the probation and parole officer assigned to the drug court, testified that it is explained to drug-court participants that they must obtain approval before taking prescription or over-the-counter medication. Woolem stated that, on October 25, 2010, appellant called to ask permission to take Soma for a back ailment. Woolem said that he denied appellant's request after discussing the matter with Linda White, the drug court's administrative specialist, because the drug had been prescribed for a previous condition. Woolem testified that drug-court participants are required to phone the call-in line every day and to leave a message...