Lead Opinion
hln 2011, appellant Raymond D. Leach was found guilty by a jury of capital murder and sentenced to life imprisonment without parole. This court affirmed. Leach v. State,
Subsequently, appellant timely filed in the trial court a verified, pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). The triаl court denied the petition, and appellant lodged an appeal from that order in this court. He now also seeks by pro se motions a copy of the transcript of his trial to prepare the appellant’s brief for the appeal and an extension of time to file the brief. As it is clear from the rеcord that appellant could not prevail if the appeal were permitted to go forward, we dismiss the appeal. The motions are moot. See Winters v. State,
Appellant was found guilty of capital murder in the death of Christopher Casey who had been stabbed. At trial, Jack Shepard testified that when he lеft his home on July 17, 2009,12between 2:30 and 2:45 a.m., he saw owned by Tyler Prine blocking the road. He stopped and observed Prine and appellant, both of whom were drunk. Appellant, who appeared agitated and was walking in circles, said repeatedly that he had stabbed the victim because Prine had wanted him to do so and that hе and Prine needed to take the truck and dispose of the body. Shepard returned to his home and called 911.
Prine testified at trial that he went to a party on July 16, 2009, where appellant was “pretty drunk.” He testified that he, appellant, and the victim left the party. Later, as the victim was driving the three to Prine’s house, appellant suddenly jumped on the victim and stabbed him. After appellant and Prine got out of the truck, appellant asked what he should do with the butterfly knife used in the stabbing, and Prine said to put in it the truck’s tool box. When Prine asked appellant why he had stabbed the victim, appellant said that he thought Prine wanted him to do so. Prine denied that he had asked appellant to kill the victim. The authorities retrieved a butterfly knife from the tool box that was determined by forensic testing to be stained with the victim’s blood. The victim’s blood was also found on appellant’s clothing.
There was also testimony that appellant said in an interview after his arrest that he had been drinking heavily and taking рrescription drugs on the evening of July 16, 2009, had no memory of being in the truck with the victim and Prine, and did not remember stabbing the victim or killing anyone.
In his petition for Rule 37.1 relief, appellant alleged that he was under the influence of drugs and alcohol to the extent that he had no memory of what occurred; he was so incoherent |sthat Prine could have convinced appellant that appellant had indeed stabbed the victim; he did not carry “that butterfly knife anywhere because it was so large and cumbersome”; Prine was the one who was angry at the victim; it was Prine who was driving, and the forensic evidence showed that it would have been practically impossible for appellant to inflict the wounds to the victim; Prine had the key to the tool box where the knife was found; Prine committed perjury concerning where certain pills were obtained; Prine may have given appellant the pills that impaired his thinking or maybe spiked his drink and then Prine killed the victim. Appellant further stated in the petition that, even if he did in fact kill the victim, he would not have done so if Prine had not supplied the drugs that affected him so adversely. He argued that, under the circumstances that suggest Prine was culpable, counsel was ineffective for not asking that the jury be instructed on accomplice liability. He also contended that сounsel was ineffective for not making him aware of three plea bargains, one of which he would have accepted had he been made aware of it.
With respect to appellant’s allegations in the petition concerning the sufficiency of the evidence to support the jury’s finding that he was guilty of capital murder, challenges to the sufficiency of the evidence are not cognizable under Rule 37.1. Anderson v. State,
As to appellant’s claims that his attorney was ineffective, 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,
When considering an appeal from a trial court’s denial of a Rule 37.1 petition based on inеffective 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,
The benchmark fоr 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,
Appellant contended in a motion to amend the Rule 37.1 petition, which the trial court considered as an addition to the petition, that counsel failed to procure the attendance at trial of witnesses who were material to the defense and who could have testified to threats made by Tyler Prine against the victim and to threats made by Prine to the potential witnesses to prevent them from testifying. He further argued that, if the witnesses refused to testify, counsel could have obtained the statements of those witnesses and introduced them into evidence to establish that the victim feаred Prine.
The allegation does not meet the standard under Strickland for establishing ineffective assistance of counsel because appellant did not demonstrate that there was a witness who could have provided admissible evidence that would have resulted in a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt such that the decision reached would have been different absent the errors. See McNichols v. State,
Appellant also argued that he was entitled to postconviction relief on the ground that counsel was remiss in not requesting a jury instruction on accomplice liability. The exact basis on which appellant was alleging that Prine was an accomplice was unclear, but it appears to have been founded at least in part on the claim that Prine supplied him with the pills that resulted in his confused mental state, i.e., that Prine was as much to blame as appellant for appellant’s commission of the offense.
Appellant did not make a showing of ineffective assistance of counsel. To prevail under Rule 37.1, the petitioner must offer facts to show that counsel’s failure to request an instruction prejudiced the defense to the extent that petitioner was deprived of a fair trial. Mathis v. State,
|7If appellant intended the allegation to be that he would not have been as culpable if he had Prine as an accomplice, the law in Arkansas makes no distinctiоn between the criminal liability of a principal and an accomplice. Ark.Code Ann. § 5-2-402(2) (Repl. 2006); Winters v. State,
Finally, appellant alleged in his Rule 37.1 petition and the motion to amend the petition that his attorney failed to advise him of offers by the State to enter into a bargain whereby he would plead guilty and receive a more favorable sentence than the sentence of life without parole that was imposed. Appellant repeated the contention in two motions “to clarify,” explaining that it was a deputy prosecuting attorney who made the offers. He apрended to the motions his sister’s affidavit stating that the prosecuting attorney told her after appellant’s trial that “they had asked or talked to” appellant’s attorney about the plea bargains and that counsel either walked away or said she could win and declined to talk further. In its response to the Rule 37.1 petition, the State averred that no plea offer was ever made in the case.
Failure to communicate a plea agreement offer to a defendant has been held to be |8ineffective assistance of counsel when it is established by the petitioner that the plea was indeed offered. See Elmore v. State,
I, Andy Riner, affirm that no plea offers were made to Defense Counsel. The only discussion of a plea was initiated by Attorney Randy Rainwater who asked your Affiant for a plea to manslaughter and credit for time served, which was rejected by the State. Further, Chief Deputy Prosecuting Attorney, Jim Henderson asked counsel for Defendant, Andy [sic] Davis, if Leach were interested in a plea offer and received no response.
The affidavit contradicts appellant’s claim that there was a plea offer that was not communicated to him.
Appeal dismissed; motions moot.
Notes
. The court responded to the motion to clarify the Rule 37.1 petition in a file-marked letter order in which the court explained that the contents of the motions would not change the outcome of the Rule 37.1 proceeding because "the fact that your lawyer failed to discuss matters with the Deputy Prosecuting Attorney makes no difference” because the Prosecuting Attorney has indicated that no plea offer was ever proposed.
Dissenting Opinion
dissenting.
The failure to communicate a plea-agreement offer to a defendant has been held to constitute ineffective assistance of counsel. \JSee Riggins v. State,
We have held that a plea agreement is an agreemеnt between the accused and the prosecutor, not an agreement between counsel and the prosecutor. See id. To that end, it seems only fair that trial counsel had a duty to pass along any inquiry to Leach, such that he could decide his interest in a plea bargain. If the failure to communicate a plea offer constitutes ineffective counsel, it certainly stands to reason that the failure to communicate the State’s inquiry as to Leach’s amenability to a plea offer could also equate to ineffective assistance.
Hart, J., joins.
. I am cognizant of our line of cases wherein we have regrettably used the language that "[t]he decision on whether to enter into plea negotiations is a matter of strategy beyond the purview of post-conviction relief.” See, e.g., Jones v. State,