KIRK JOHNSON v. STATE OF ARKANSAS
No. CR-12-741
SUPREME COURT OF ARKANSAS
February 20, 2014
2014 Ark. 74
HONORABLE JODI RAINES DENNIS, JUDGE
APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. CR-03-676-2-5], AFFIRMED.
Appellant Kirk Johnson appeals the order entered by the Jefferson County Circuit Court denying his petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure. For reversal, Johnson contends that the circuit court erred by not finding that he received ineffective assistance of counsel upon the revocation of his probation. We affirm.
As reflected by a judgment and disposition order entered on April 4, 2007, Johnson pled guilty to charges of attempt to manufacture methamphetamine, possession of methamphetamine, possession of marijuana, and the use of paraphernalia to mаnufacture methamphetamine. Collectively, he received five years of supervised probation. The record further reveals that the State filed a petition to revoke on September 7, 2007. In the pеtition, the State alleged that Johnson had inexcusably violated the terms of his probation by failing to report to his probation officer; by not paying probation-service fees and sheriff‘s fees; by
Johnson appealed the revocation of his probation, arguing that the circuit court erred by revoking his probation because he did not waive the sixty-day time limitation for conducting the revocation hearing and because he did not receive notice of the grounds on which the State was seeking revocation. The court of appeals affirmed on both points, holding that neither issue had been preserved for appeal. Johnson v. State, 2011 Ark. App. 590.
Thereafter, Johnson filed a timely petition for postconviction relief in which he asserted thаt his counsel was ineffective for not pursuing the argument that the sixty-day time period for holding the revocation hearing had expired and for not asserting that he did not receive adequate notice of the allеged probation violations. The circuit court denied the petition without a hearing by entry of an order dated June 25, 2012. Johnson now appeals
For reversal, Johnson argues that the circuit court erred in finding that he did nоt receive ineffective assistance of counsel on both grounds asserted in his petition. The criteria for assessing the effectiveness of counsel were enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). In asserting ineffective assistance of counsel under Strickland, the petitioner must first show that counsel‘s performance was deficient. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. 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 reasоnable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55. Second, the petitioner must show that counsel‘s deficient performance prejudiced the defense, which requires showing that counsel‘s errors were so serious as to deprive the petitioner of a fair trial. Mason v. State, 2013 Ark. 492, ___ S.W.3d ___. Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. White v. State, 2013 Ark. 171, ___ S.W.3d ___.
This court does not reverse a denial of рostconviction relief unless the circuit court‘s findings are clearly erroneous. Davenport v. State, 2013 Ark. 508, ___ S.W.3d ___. A finding is clearly erroneous when, although there is evidence to support it, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed.
As his first point on appeal, Johnson contends that the circuit court erred by not finding that his counsel was ineffective for failing to raise the issue that the revocation hearing had been held outside the sixty-day limitation set by statute. He claims that he was arrested and served with the petition to revoke on July 2, 2008,1 and that the November 10, 2008 hearing was not held within sixty days following his arrest.
At the time of Johnson‘s revocation,
As his next claim, Johnson faults his counsel for not advancing the argument thаt the State failed to provide notice of the conditions of probation that he had allegedly violated. In making this argument, Johnson maintains that the circuit court allowed him to remain on probation following thе hearing held on November 10, 2008, and that the court continued the matter until January 12, 2009, to determine whether he was complying with the terms of probation. Further, Johnson contends that when the hearing was eventually held on February 16, 2010, the State presented testimony of violations that had occurred after the November 2008 hearing. He claims that the State was required to file a new petition to revoke to include alleged violations that occurred after the petition to revoke had first been filed and then heard on November 10, 2008. Johnson urges that his counsel was ineffective for not objecting to testimony of violations occurring outside the scoрe of the petition to revoke and of which he had no notice.
In its order, the circuit court offered no direct ruling on the issue raised by Johnson in
The record reveals that the circuit court revoked Johnson‘s probation at the November 2008 hearing when it accepted Johnson‘s admission that he had violated the terms of his probation. The record also demonstrates that the January 2009 hearing was scheduled for the purpose of sentencing Johnson upon the revocation of his probation. As also shown by the record, the circuit court granted six continuances of the sentencing hearing at Johnson‘s request, and the court ultimately issued an arrest warrant for Johnson after he failed to appear
Affirmed.
James P. Clouette, for appellant.
Dustin McDaniel, Att‘y Gen., by: David R. Raupp, Sr. Ass‘t Att‘y Gen., for appellee.