Sherman v. StateSherman v. State
Appellant Patrick L. Sherman brings this appeal from two orders, both of which were entered in the Hot Spring County Circuit Court on June 10, 2013, that denied relief pursuant to
Subsequently, appellant timely filed in the trial court a verified, pro se petition and amended petition for postconviction relief under
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, 2014 Ark. 172, 438 S.W.3d 234. 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. Caery v. State, 2014 Ark. 247, 2014 WL 2158140 (per curiam); Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694.
When considering an appeal from a trial court‘s denial of a
The benchmark for 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, 466 U.S. at 686, 104 S.Ct. 2052. Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Caery, 2014 Ark. 247, 2014 Ark. 247; Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). 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 reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam). Second, the petitioner must show that counsel‘s deficient performance so prejudiced petitioner‘s defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel‘s performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner must show that there is a reasonable probability that, but for counsel‘s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Breeden v. State, 2014 Ark. 159, 432 S.W.3d 618 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in sentencing. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. “[T]here is no reason for a court deciding an ineffective assistance claim ... to address both compo
Appellant‘s claims for postconviction relief were limited to those asserting that his plea was not entered intelligently and voluntarily upon advice of competent counsel. Robinson v. State, 2014 Ark. 289, 2014 WL 2931692 (per curiam); Sandoval-Vega v. State, 2011 Ark. 393, 384 S.W.3d 508 (per curiam). By pleading guilty, appellant waived any claim that he was not guilty of the charges. Robinson, 2014 Ark. 289, 2014 WL 2931692. To establish prejudice and prove that he was deprived of a fair trial due to ineffective assistance of counsel, a petitioner who has entered a plea of guilty must demonstrate a reasonable probability that, but for counsel‘s errors, he would not have entered a guilty plea and would have insisted on going to trial. Robinson, 2014 Ark. 289, 2014 WL 2931692 (citing Scott v. State, 2012 Ark. 199, 406 S.W.3d 1). A petitioner who has entered a guilty plea normally will have considerable difficulty proving any prejudice, as the plea rests upon an admission in open court that the petitioner did the act charged. Scott, 2012 Ark. 199, 406 S.W.3d 1. A petitioner under
In his brief, appellant argues that his attorney was ineffective because she did not argue that he was illegally arrested. He further finds fault with counsel‘s failure to file a pretrial motion to suppress evidence pertaining to certain clothing and the “suspect methamphetamine substance” because the substance was not confirmed by scientific testing to be methamphetamine and because it was not found until after a secondary search of the area where he was arrested. Appellant asserts that he would not have entered a plea of guilty had counsel filed the motions to suppress, presumably because the motions would have resulted in suppression of the evidence seized. Appellant also alleges that counsel should have filed pretrial motions to declare his criminal history void on the ground that the facts of the prior cases would show those judgments to be invalid and to reduce the charge of felony fleeing because the facts would not support a conviction for the offense. Appellant also contends that counsel should have attacked the sufficiency of the evidence to support the fleeing charge and also filed a motion for directed verdict inasmuch as the evidence was insufficient to sustain a conviction for burglary and robbery.
A review of the allegations of ineffective assistance of counsel contained in the petition and discussed at the evidentiary hearing reflects that the crux of most of appellant‘s assertions was that there was insufficient evidence to convict him of the four felonies to which he pleaded guilty. It is well settled that
The record of the guilty-plea hearing in Case No. 30CR-12-241 and Case No. 30CR-12-286 is a part of the record in this
With respect to the claim that counsel should have challenged the validity of the 1991 and 1995 judgments for the prior offenses that resulted in appellant‘s being charged as a habitual offender, counsel testified at the hearing that she examined the prior judgments and found no ground on which to challenge those judgments. Appellant contends that a challenge would have been successful as he was placed in double jeopardy because his 1995 conviction for battery and the fleeing conviction contained a common element. The claim must fail because this court has already considered the issue of whether appellant was placed in double jeopardy when he was convicted of battery and fleeing and held that he was not. Sherman v. State, 326 Ark. 153, 931 S.W.2d 417 (1996). We noted in that decision that fleeing was a separate offense and was not to be considered a component offense with any other offense occurring simultaneously. Appellant did not show in his
As to the 1991 prior judgments, appellant contended the judgments were invalid because he was not represented by counsel. Appellant, however, offered no proof that he was not represented by counsel when he entered the plea in 1991 that counsel could have employed to challenge the use of the 1991 judgment for burglary to establish that he was a habitual offender.2
Also, it should be noted that, if appellant intended to utilize the
To the degree that appellant‘s assertions of ineffective assistance of counsel could be said to go to whether the plea was entered with the effective assistance of counsel in his case, counsel testified at the
Appellant also argues in his brief that he was subjected to double jeopardy because he entered a plea of guilty in Case No. 30CR-12-286 to both residential burglary and robbery on the ground that the robbery was the underlying offense to the residential burglary. While a double-jeopardy claim is a fundamental claim that can be raised for the first time in a
Appellant was charged by information with violating the residential-burglary statute,
The felony information charged appellant with robbery in violation of
Appellant argues that because theft was the object of both the burglary and the robbery, he could not legally be found guilty of both offenses. The elements of the two offenses, however, were different in that robbery requires the use or threat of force. Appellant was legally found guilty of having committed burglary by entering the home to commit theft and legally found guilty of robbery by subsequently using force against the homeowner. See Kinsey v. State, 290 Ark. 4, 716 S.W.2d 188 (1986) (holding under prior law that aggravated robbery is not a lesser-included offense of burglary, and a defendant can be convicted of both). Appellant did not establish that he was subjected to double jeopardy.
Finally, appellant, who was charged by felony information, asserts that he had an absolute right to be charged by a grand jury. The trial court did not err in declining to grant relief on the claim. This court has rejected the argument raised by appellant, which is essentially a challenge to the court‘s jurisdiction. Smith v. State, 2012 Ark. 311, 2012 WL 3365218 (per curiam) (citing Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989); Ellingburg v. State, 254 Ark. 199, 492 S.W.2d 904 (1973)).
After a review of the record and consideration of appellant‘s arguments, we find that the claims raised by appellant under
Affirmed.