Polivka v. StatePolivka v. State
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[¡On July 27, 2006, Appellant Joseph Po-livka entered an unconditional plea of guilty to two counts of criminal attempt to commit murder in the first degree and one count of possession of a firearm by certain persons. Appellant requested that he be sentenced by a jury, pursuant to
^Appellant filed a timely notice of appeal on August 22, 2006. He maintained that his fifteen-year felony-firearm sentencing enhancement for each count of attempted murder was unjust and excessive under
Then, on November 7, 2007, Appellant timely filed in the circuit court this verified pro se petition for postconviction relief pursuant to
On February 21, 2008, the circuit court entered an order denying Appellant’s petition without a hearing. The court found that the following claims of ineffective assistance of counsel, as alleged by Appellant, did not provide grounds for
Appellant alleges several points on appeal. He maintains that he was denied effective assistance of counsel because his trial counsel (1) failed to prepare adequately for trial; (2) failed to raise the issue of the felony-firearm enhancement; (3) failed to ensure that the court followed
This court will not reverse a denial of postconviction relief unless the circuit court’s findings are clearly erroneous. 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. State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007). In the context of review of a circuit court’s denial of postcon-viction relief on a claim of ineffective assistance of counsel, we look to whether the circuit court clearly erred based on the totality of the evidence. Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007). In this case, we find no error and affirm the decision of the circuit court.
[As an initial matter, we must address whether Appellant may assert all of his allegations on appeal. Appellant advances several claims of ineffective assistance of counsel, some of which stem from errors alleged as part of his plea of guilty and some of which stem from errors alleged to have occurred during the subsequent sentencing proceeding. We have frequently held that “on appeal from the denial of a
However, Appellant was sentenced under the Arkansas bifurcated-sentencing statute,
Under the bifurcation structure, a criminal trial is split into separate and distinct stages, the first of which involves the finding of guilt or innocence. In the event of a finding of guilt, further proceedings are held in which evidence may be presented prior to the setting of sentence .... Thus, it is obvious that this new procedure differs considerably from the prior conduct of trials where the jury assessed both guilt and sentence during one proceeding.
Hill v. State, 318 Ark. 408, 412, 887 S.W.2d 275, 277 (1994). As a result, “sentencing is now, in essence, a trial in and of itself, in which new evidence may be submitted.” Id. at 413, 887 S.W.2d at 277. In Hill, we held that the defendant could appeal the circuit court’s decision 1 Rto admit certain evidence before the jury during the sentencing phase of the trial, since “the acceptance of this appeal from a plea of guilty does not compromise our rule, for it does not constitute a review of the plea itself. Rather, it provides for a review of nonju-risdietional issues, such as the admission of testimony and evidence authorized by this new statute, which arose during the penalty phase of the trial subsequent to the entry of Hill’s guilty plea.” Id. However, we noted that our opinion in Hill applied only to appeals of nonjurisdictional issues, and the court would not “review the imposition of sentence simply where the defendant maintains his sentence is excessive, when in fact his sentence is within the range prescribed by statute for the offense in question.” Id. at 413-14, 887 S.W.2d at 278.
This court extended its discussion of appeals of guilty pleas in Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003), wherein we held that the defendant could appeal
Finally, and most importantly, in Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002), the defendant alleged eight points of error that occurred during the sentencing phase of his trial. Though he did not raise a contemporaneous objection on any of the points at trial, the defendant maintained that he could bring his appeal under one of the four exceptions to the contemporaneous-objection rule, as laid out in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). As part of our rejection of this argument, we indicated that the proper route for challenging convictions as vio-lative of fundamental rights was through a postconviction challenge pursuant to
This language, as well as our discussion of the nature of sentencing proceedings in a bifurcated system, confirms that defendants may seek relief — and, indeed, as indicated, sometimes it is their only option — pursuant to
jy.. Ineffective Assistance of Counsel
The essence of Appellant’s argument is that he was denied effective assistance of counsel because his counsel failed to prevent or mitigate errors that occurred during his guilty plea and the subsequent sentencing hearing. We assess the effectiveness of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant making an ineffective assistance of counsel claim must show that his or her counsel’s performance fell below an objective standard of reasonableness and that this deficient performance prejudiced the defense.1 Judicial review of a defense counsel’s performance must be highly deferential, and a strong presumption exists that counsel’s conduct falls within a wide range of reasonable professional assistance. Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). In order to prove an ineffective
A. Trial Counsel’s Inadequate Preparation for Trial
Appellant argues that his trial counsel failed to prepare for his trial and to visit him in order to discuss the case and his defense. He points out that his counsel only visited him twice during the twenty-three months he was incarcerated prior to trial, and he wrote several letters to the circuit court complaining about his counsel’s performance. Since this issue rests on allegations that Appellant’s counsel was ineffective prior to Appellant’s entry of his guilty plea, it is subject to the limitation, discussed above, that
In addition, there is no merit to Appellant’s argument. During the plea colloquy, the court specifically asked Appellant whether he was satisfied with the advice and representation of his counsel, and Appellant answered in the affirmative. We have held that a defendant |incannot claim ineffective assistance of counsel in a
B. Trial Counsel’s Failure to Raise Issues Surrounding the Use of the Felony-Firearm Enhancement
Appellant argues that his counsel should have objected to the application of the felony-firearm enhancement because the statute pursuant to which he received the enhancement,
Contrary to Appellant’s argument, no conflict exists between
Section 5-4-104(a) can be viewed as referring only to the initial sentence imposed based on the crime for which the defendant was convicted, and§ 16-90-120(a) — (b) can be read as referring only to a sentence enhancement that may be added to the initial sentence.
Looking at the clear language of § 16 — 90—120(a)—(b), we observe that the legislature intended the statute to serve as an enhancement of the original sentence for the convicted crime, as the statute itself says that the sentence enhancement is an “additional period of confinement.”Ark.Code Ann. § 16-90-120(a) (emphasis added). We further note that when§ 5-4-104(a) was enacted in 1975, the legislature did not choose to repeal or overrule§ 16-90-120(a) -(b). This is important, since in Johnson v. State, supra, we have noted that when presented with the challenge of construing criminal statutes that were enacted at different times, the court presumes “that when the general assembly passed the later act, it was well aware of the prior act.” 331 Ark. [421,] at 425, 961 S.W.2d [764,] at 766 [ (1998) ] (holding that the Arkansas Criminal Code and the gambling-house statute can be read in harmony where one defines the term of imprisonment and the other allows the court to impose suspension or probation).
We hold that§ 5-4-104(a) and§ 16-90-120(a) -(b) can be read harmoniously to mean that§ 16-90-120(a) -(b) is only a sentence enhancement, while the Arkansas Criminal Code provides the minimum sentences to be imposed for each specific offense.
Williams v. State, 364 Ark. 203, 208-09, 217 S.W.3d 817, 820 (2005). Because Appellant’s sentence was legally enhanced, any objection that his trial counsel might have made on those grounds would have been meritless. Failure to make a merit-less objection does not constitute ineffective assistance of counsel. Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003).
Appellant also maintains that his attorney did not inform him about the possibility of receiving an enhanced sentence, thereby denying appellant effective assistance of counsel. This argument is also meritless because it is clear from the trial record, and particularly the j^plea colloquy, that Appellant was aware of the possibility of receiving a felony-firearm enhancement.
C. Trial Counsel’s Failure to Ensure That the Circuit Court Followed Arkansas Rules of Criminal Procedure 24.4, 24.6 and 24.7 (2007)2
Appellant argues that the trial court violated
(a) the nature of the charge;
(b) the mandatory minimum sentence, if any, on the charge;
(c) the maximum possible sentence on the charge, including that possible from consecutive sentences;
(d) that if the offense charged is one for which a different or additional punishment is authorized because the defendant has previously been convicted of an offense or offenses one (1) or more times, the previous conviction or convictions may be established after the entry of his plea in the present action, thereby subjecting him to such different or additional punishment; and
(e) that if he pleads guilty or nolo con-tendere he waives his right to a trial by jury and the right to be confronted with the witnesses against him, except in capital cases where the death penalty is sought.
As discussed above, when a defendant seeks postconviction relief from a guilty plea, the defendant may only challenge whether the plea of guilty was intelligently and voluntarily entered and whether the plea was made on the advice of competent counsel. In regards to the requirements of
Compliance withRule 24.4 is mandatory, but substantial compliance is sufficient. Peterson v. State, 296 Ark. [324,] at 326, 756 S.W.2d [897,] at 898 [ (1988) ]. The polestar when a guilty plea is challenged is to determine whether the plea was made intelligently and voluntarily. Id. .... Unless the plea was not intelligently and voluntarily entered as a result, failure to comply withRule 24.4 is not such fundamental error so as to void the judgment and is not cognizable in a postconviction-relief proceeding. Post-conviction relief underArk. R.Crim. P. 37.1 is not available on issues which could have been raised in the trial court before sentencing, but were not, unless the issues are so fundamental as to render the judgment void. Madewell v. State, 290 Ark. 580, 720 S.W.2d 913 (1986).
Pardue v. State, 363 Ark. 567, 575, 215 S.W.3d 650, 657 (2005). Appellant does not allege that, because of the errors that he maintains occurred during the guilty plea colloquy, he did not enter the guilty plea intelligently and voluntarily.
Finally, an examination of the trial transcript reveals that the trial court did in fact substantially comply with the requirements of
|MP. Trial Counsel’s Failure to Object to the Jury Instruction on Parole and Good-Time Transfer Eligibility
Appellant maintains that he was deprived of effective assistance of counsel when his attorney failed to insist that the circuit court instruct the jury that he would be ineligible for parole under
(1) Any person who commits a violent felony offense or any felony sex offense subsequent to August 13, 2001, and who has previously been found guilty of or pleaded guilty or nolo contendere to any violent felony offense or any felony sex offense shall not be eligible for release on parole by the board.
(2) For purposes of this subsection, “a violent felony offense or any felony sex offense” means those offenses listed in § 5 — 4—501(d)(2).3
Appellant maintains that the jury was required to receive such an instruction under
Appellant fails to cite any authority or make a convincing argument that his trial attorney had a duty to object to the jury instructions made by the court. It is in fact not a | ^violation of the doctrine of separation of powers for a court to instruct the jury on parole and transfer eligibility. Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997). We will not entertain arguments unsupported by any legal authority. Weatherford v. State, 352 Ark. 324, 101 S.W.3d 227 (2003). What is more, we have repeatedly held that “a petitioner under
E. Trial Counsel’s Failure to Object to Prosecution’s Prejudicial Comment to the Jury
Appellant maintains that in closing statements during the sentencing trial before the jury, the prosecutor made an argument outside the record that prejudiced Appellant by inflaming the passion of the jury and affecting the outcome of the trial. Specifically, Appellant alleges that the prosecutor told the jury that “they should not believe one ioda [sic], of what 11fihe told you.” Appellant’s attorney did not object to this statement at the time it was made, thereby, Appellant argues, providing ineffective assistance to Appellant.
We can find no instance in the trial transcript when the prosecutor made such a statement. There is only one instance when the prosecutor ever uttered the word “iota,” and his statement was in reference to Appellant’s failure to make “one iota of apology” to one of his victims. In addition, Appellant failed to abstract any of the closing arguments. Thus, the record and Appellant’s abstract fail to show that the statement which Appellant objects to was ever made. We will not consider evidence not included in the record on appeal when the party asserting error fails to satisfy his or her burden of producing a record sufficient to demonstrate prejudicial error. Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001).
This court has noted that experienced advocates might differ about when, or if, objections are called for since, as a matter of trial strategy, further objections from counsel may have succeeded in making the prosecutor’s comments seem more significant to the jury. Because many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, the failure to object |17during closing argument and opening statement is within the wide range of permissible professional legal conduct.
Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006) (citations omitted). The prosecutor’s comment, whatever it may have been, does not rise to the level of an egregious misstatement. Appellant fails to establish that he did not receive effective assistance of counsel on this point.
F. Trial Counsel’s Failure to Present Any Mitigating Evidence at the Sentencing Phase of the Trial
Appellant argues that his trial counsel failed to investigate, discover, or present to the jury mitigating evidence regarding how Appellant’s mental health had been affected by the prescription drugs he was taking at the time he committed the crime. As with many of Appellant’s other points, he fails to cite any authority to support his argument that his counsel’s alleged failure constitutes ineffective assistance. As discussed above, we will not consider arguments unsupported by legal authority. Weatherford v. State, 352 Ark. 324, 101 S.W.3d 227 (2003). Additionally, while we have held that failure to present any mitigating testimony fails to pass constitutional muster, failure to present certain evidence is merely a matter of trial strategy when counsel has made a full investigation of the facts. Lee v. State, 2009 Ark. 255, 308 S.W.3d 596. In a hearing on July 24, 2006, Appellant’s attorney told the court that he had considered presenting a defense based on the fact that Appellant was taking Ambien, but his investigations had failed to reveal any evidence in support of such an | ^argument. Appellant received a forensic evaluation on November 3, 2005, that revealed he was not suffering from any mental disease or defect at the time of the offense. Appellant’s attorney also introduced evidence before the jury that Appellant was taking prescription OxyContin, Ambien, Celebrex, Welbutrin, Clonopin, and Flexoril because of injuries he received while serving in the military. In closing statements, his counsel suggested that the medication Appellant was on somehow led him to have a violent reaction the night of the crime. It is clear that Appellant’s counsel presented to the jury as much mitigating evidence on this issue as was available. Therefore, Appellant was not deprived effective assistance of counsel.
G. Trial Counsel’s Failure to Object to the Excessiveness of Appellant’s Sentence and to Seek Leniency
Finally, Appellant asserts that he was denied effective assistance of counsel because his trial attorney failed to object to the sentences Appellant received as excessive, and failed to seek leniency from
Itall. The Circuit Court’s Dismissal of Appellant’s Claims Without Reviewing the Record or Conducting an Evi-dentiary Hearing
In addition to the above allegations regarding ineffective assistance of counsel, Appellant contends that, based on all the claims he made in his petition, the circuit court erred in denying his petition without first holding an evidentiary hearing. The circuit court need not hold a hearing on a
We hold that the allegations in Appellant’s petition are such that it is conclusive on the face of the petition that no relief is warranted. As discussed at length above, many of Appellant’s arguments are unsupported by evidence or authority, while the rest of his arguments are entirely without merit. Therefore, we affirm the circuit court’s denial of relief.
Affirmed.
Notes
. At one point in his brief, Appellant asserts that this court should adopt the ” ‘reasonably competent’ attorney standard” for review of ineffective assistance of counsel claims. Since Appellant neither raised this argument below, nor provides any support for this argument now, we will not address it on appeal. McWhorter v. McWhorter, 2009 Ark. 458, 344 S.W.3d 64; Hester v. State, 362 Ark. 373, 208 S.W.3d 747 (2005).
. Appellant did not argue that the trial court failed to follow
. Appellant had previously been convicted of battery in the first degree in 1977.