Davenport v. State, 431 S.W.3d 204

Background

In 2006 Davenport was convicted by a jury of capital murder and three counts of unlawful discharge of a firearm from a vehicle; the jury also found he used a firearm on each count. The State waived the death penalty; Davenport received life without parole for capital murder, concurrent 30-year terms for the unlawful-discharge counts (as an habitual offender), and a consecutive 15-year firearm enhancement.
Davenport filed a timely pro se Rule 37.1 petition alleging ineffective assistance of trial counsel for failing to object or obtain Davenport’s waiver when the circuit court — rather than the jury — imposed sentences on the firearm enhancement and the unlawful-discharge convictions.
This Court initially reversed and remanded because the trial record did not clearly show a waiver in open court or the defendant’s presence at the waiver discussion; the matter was sent back for factfinding on waiver and counsel’s performance.
On remand a hearing was held: trial counsel (James) testified he typically would obtain the defendant’s consent and recalled a bench discussion but had no specific recollection of discussing waiver with Davenport; the prosecutor testified he believed Davenport waived jury sentencing after a private conversation between counsel and Davenport.
The circuit court found counsel agreed to the waiver and that counsel followed his usual practice; the court also found Davenport failed to show prejudice from any alleged deficiency and denied relief. Davenport appealed.
The Arkansas Supreme Court affirmed, holding Davenport did not show the prejudice required under Strickland and therefore failed to prevail on his ineffective-assistance claim.

Issues

Issue	Davenport's Argument	State's Argument	Held
Whether counsel was ineffective for not objecting when the court (not the jury) imposed sentence on the firearm enhancement	Counsel failed to object and did not obtain Davenport’s waiver of jury sentencing	Waiver occurred (via counsel) and, in any event, Davenport cannot show prejudice	Affirmed: Davenport failed to show Strickland prejudice; no relief granted
Whether counsel was ineffective for not obtaining Davenport’s consent to waive jury sentencing on unlawful-discharge counts	No consent was obtained and defendant was not present for waiver discussion	Counsel secured waiver in practice; defendant’s presence/consent effectively established	Affirmed: Court accepted circuit court’s finding that counsel arranged the waiver and Davenport showed no prejudice
Whether sentencing for firearm enhancement must be set by the jury when a defendant is tried by a jury	Jury should set firearm enhancement punishment; counsel’s failure to preserve the jury role was error	Even if jury should decide, lack of prejudice is fatal to relief	Court reiterated jury (or judge as factfinder) should assess firearm enhancement but denied relief due to lack of prejudice
Standard for ineffective-assistance postconviction relief	Strickland requires deficient performance and prejudice	Same; State emphasizes failure to prove prejudice is dispositive	Court applied Strickland and resolved case on lack of prejudice

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance standard of deficient performance and prejudice)
Davenport v. State, 373 Ark. 71 (Ark. 2008) (direct appeal affirming convictions and sentences)
Haynie v. State, 257 Ark. 542 (1975) (discusses jury role in assessing firearm enhancement and appellate treatment when counsel fails to object)
Brown v. State, 259 Ark. 449 (1976) (factfinder should determine firearm use and assess enhanced penalty)
Johnson v. State, 249 Ark. 208 (1970) (court-imposed firearm enhancement when not alleged in information violates rights)
Cotton v. State, 256 Ark. 527 (1974) (error where jury determines firearm use but court imposes enhancement)
Watkins v. State, 2010 Ark. 156 (2010) (postconviction claim rejected where prejudice from court-imposed enhancement was speculative)