Harris v. State , 2017 Ark. App. LEXIS 408 ( 2017 )

Cite as 2017 Ark. App. 381
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-16-480
Opinion Delivered: June 21, 2017
LESLIE JOHN HARRIS
APPELLANT
APPEAL FROM THE CLARK
V. COUNTY CIRCUIT COURT
[NO. 10CR-2011-54]
STATE OF ARKANSAS HONORABLE ROBERT E.
APPELLEE MCCALLUM, JUDGE
AFFIRMED IN PART; DISMISSED
IN PART
RAYMOND R. ABRAMSON, Judge
Appellant Leslie John Harris appeals the order of the Clark County Circuit Court
denying his petition for postconviction relief pursuant to Arkansas Rule of Criminal
Procedure 37.1. We assumed jurisdiction of this appeal pursuant to footnote 1 in Barnes v.
State, 2017 Ark. 76, 511 S.W.3d 845 (per curiam). Harris contends that the circuit court
erred in denying his petition because his trial counsel was ineffective for (1) failing to seek
posttrial relief based on juror misconduct and (2) failing to ensure that his plea to the charge
of possession of a firearm by certain persons was knowingly, voluntarily, and intelligently
entered. He also argues that, regardless of his trial counsel’s performance, the circuit court
erred by refusing to set aside his conviction for possession of a firearm by certain persons
because he did not enter a knowing, intelligent, or voluntary plea to that charge. We affirm
in part and dismiss in part.
Cite as 2017 Ark. App. 381
Harris was convicted by a Clark County jury of criminal use of a prohibited weapon,
two counts of possession of a controlled substance with intent to deliver, and simultaneous
possession of drugs and firearms. This case began on March 6, 2011, when Jasmine Owens
alerted a 911 dispatcher that Harris had attempted to sexually assault her at his home. Sheriff’s
deputies were notified that Harris was driving a black pickup truck and that Owens’s purse,
shoes, and jacket were inside. Harris was pulled over a short time later. After he was taken
into custody, officers searched his vehicle and found brass knuckles and Owens’s purse and
shoes. Officers also later found drugs in the backseat of the patrol car in which Harris was
transported. The police obtained a search warrant for Harris’s home and found a .22-caliber
rifle in a bedroom, a 9mm handgun in an air vent in the living room, ecstasy pills in the
pocket of a jacket lying on a bed, digital scales, and a red jacket that Owens later identified
as hers.
Harris was charged with criminal use of a prohibited weapon, two counts of
possessing a controlled substance with intent to deliver, criminal attempt to commit sexual
assault, possession of a firearm by certain persons, and simultaneous possession of drugs and
firearms. Before the trial, Harris’s counsel, Tim Beckham, moved to sever the felon-in-
possession charge from the other charges; the circuit court granted the motion. On January
19, 2012, after a jury trial on the remaining counts, a Clark County jury convicted Harris
of criminal use of a prohibited weapon, two counts of possession of a controlled substance
with intent to deliver, and simultaneous possession of drugs and firearms. Harris was
acquitted on the sexual-assault charge. He was sentenced to six years’ imprisonment for
criminal use of a prohibited weapon and forty years each on his other three convictions.
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Cite as 2017 Ark. App. 381
At a hearing on January 25, 2012, at which the court was to decide the issue of
consecutive versus concurrent sentences, the parties notified the court that they had reached
an agreement whereby Harris pleaded no contest to the felon-in-possession charge. He was
sentenced to six years for that crime, to run concurrently with the six-year sentence for
criminal use of a prohibited weapon. The circuit court ran Harris’s three 40-year sentences
concurrently with each other but consecutively to the six-year sentences. This court
affirmed Harris’s conviction in Harris v. State, 2012 Ark. App. 674, and the mandate was
entered on December 18, 2012.
Harris filed a petition for relief under Rule 37 on February 19, 2013; the petition
contained a proper verification. Harris petitioned the circuit court pursuant to Arkansas
Rule of Criminal Procedure 37 for relief from his convictions for criminal use of a
prohibited weapon, possession of a controlled substance with intent to deliver (two counts),
possession of a firearm by certain persons, and simultaneous possession of drugs and firearms,
and his sentence of forty-six years in prison, on the ground that he was convicted and
sentenced in violation of his Fifth, Sixth, and Fourteenth Amendment rights to effective
assistance of counsel. 1
1
We note that Harris was convicted by a Clark County jury of criminal use of a
prohibited weapon, two counts of possession of a controlled substance with intent to deliver,
and simultaneous possession of drugs and firearms. Harris pleaded no contest to the charge
of possession of a firearm by certain persons. In our opinion Harris v. State, 2012 Ark. App.
674, we inaccurately stated that “Leslie Harris was convicted by a Clark County jury of
criminal use of a prohibited weapon, two counts of possession of a controlled substance with
intent to deliver, possession of a firearm by certain persons, and simultaneous possession of
drugs and firearms. As a habitual offender, he was sentenced to a total of forty years’
imprisonment.” We correct ourselves here and acknowledge that the Clark County jury
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Cite as 2017 Ark. App. 381
In his petition, Harris alleged that his trial counsel was ineffective for failing to file a
motion for a new trial based on jury misconduct; that his trial counsel was ineffective for
failing to ensure that his plea to the charge of possession of a firearm by certain persons was
knowingly, voluntarily, and intelligently made; and that regardless of his trial counsel’s
performance, his conviction for possession of a firearm by certain persons should be set aside
because he did not enter a knowing, intelligent, or voluntary plea to that charge. After a
hearing on December 10, 2015, the circuit court entered an order denying the petition on
February 3, 2016. 2 On appeal, Harris contends that the circuit court clearly erred by
rejecting his ineffective-assistance-of-counsel claims and by refusing to set aside his plea.
We do not reverse a denial of postconviction relief unless the circuit court’s findings
are clearly erroneous. Reed v. State, 2011 Ark. 115 (per curiam). 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. Id.
The benchmark question to be resolved in judging a claim of ineffective assistance
of counsel is 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. Norris
v. State, 2013 Ark. 205, 427 S.W.3d 626 (per curiam). A Rule 37 petitioner’s ineffective-
assistance-of-counsel claims are analyzed under the two-prong standard as set forth by the
convicted Harris of all of the crimes listed except possession of a firearm by certain persons.
As noted above, Harris pleaded no contest to that charge.
2
The record does not reflect why the Rule 37 hearing was held almost three years after
the petition had been filed.
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United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See Lowe v.
State, 2012 Ark. 185, 423 S.W.3d 6 (per curiam). Under the Strickland test, a claimant must
show that counsel’s performance was deficient, and the claimant must also show that the
deficient performance prejudiced the defense to the extent that the appellant was deprived
of a fair trial. Id. A claimant must satisfy both prongs of the test, and it is unnecessary to
examine both components of the inquiry if the petitioner fails to satisfy either requirement.
See Pennington v. State, 2013 Ark. 39 (per curiam).
A petitioner claiming ineffective assistance must first show that counsel made errors
so serious that counsel was not functioning as the “counsel” guaranteed to the petitioner by
the Sixth Amendment to the United States Constitution. Walton v. State, 2013 Ark. 254
(per curiam). There is a strong presumption that trial counsel’s conduct falls within the wide
range of reasonable professional assistance, and an appellant has the burden of overcoming
this presumption by identifying specific acts or omissions of trial counsel that when viewed
from counsel’s perspective at the time of the trial could not have been the result of
reasonable professional judgment. Id.
In order to meet the second prong of the test, a claimant must show that there is a
reasonable probability that the fact-finder’s decision would have been different absent
counsel’s errors. Delamar v. State, 2011 Ark. 87 (per curiam). A reasonable probability is a
probability sufficient to undermine confidence in the outcome of the trial. Id. Here, Harris’s
ineffective-assistance-of-counsel claims fail under the Strickland standard. He cannot
overcome the second prong of the standard––the petitioner must show that, considering the
totality of the evidence before the fact-finder, counsel’s performance prejudiced his defense.
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Prejudice is demonstrated by showing that there is a reasonable probability that, but for
counsel’s errors, the outcome of the trial would have been different. Jackson v. State, 352
Ark. 359, 365, 105 S.W.3d 352, 357 (2003) (quoting Cothren v. State, 344 Ark. 697, 703–
04, 42 S.W.3d 543, 547 (2001)).
Harris’s first allegation of ineffective assistance of counsel was that counsel failed to
file a motion for new trial for juror misconduct. Harris claims that between the date of his
trial on January 19, 2012, and when the court reconvened on January 25, 2012, to determine
the issue of concurrent versus consecutive sentences, he learned that one of the jurors at his
trial had been in an intimate relationship with his ex-wife and had failed to disclose that fact
during jury selection. Harris brought his assertion to the circuit court’s attention at the
January 25 sentencing hearing, but he was unable to identify the juror or offer any evidence
to the court to prove his allegation. The court informed Harris that this was a matter for a
postconviction motion if he felt that he needed to file for some type of relief. However,
Harris did not file a motion for a new trial based on a claim of juror misconduct. He asserts
that his trial counsel’s failure to file such a motion constituted ineffective assistance.
At the December 10, 2015 Rule 37 hearing, Harris’s trial counsel, Tim Beckham,
testified that Harris mentioned his juror-misconduct allegation to him just moments before
the January 25 sentencing hearing. Beckham testified that he did not follow up on the
allegation because he did not find it to be credible. Beckham’s understanding was that Harris
and his ex-wife were divorced, that she was out of his life, and that she was not critical to
any defense or arguments that he might raise. Furthermore, Beckham testified that Harris
was present during jury selection and did not ever notify Beckham that he had any
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Cite as 2017 Ark. App. 381
knowledge of any negative information about potential jurors. Beckham stated that he
received no additional information from Harris so he did not follow up on his claim.
Harris also testified at the Rule 37 hearing. He claimed that he heard from two
sources about the juror, whom he identified as Timothy Wells. He stated that a friend named
“Eric” informed him over the phone about Wells, but he could not recall Eric’s last name.
He also testified that his ex-wife, Kelly Harris, told him about Wells both over the phone
and during her visit with him in jail. In rebuttal, the State introduced a “Visitor Register”
for the Clark County jail for the time period between January 1, 2012, and February 9,
2012; the register did not reflect that Harris received a visit from his ex-wife during that
time frame.
After hearing the evidence, the circuit court denied Harris’s claim. The circuit court
found that Harris’s allegations of juror misconduct were wholly conclusory. We agree.
Conclusory allegations without factual substantiation are not sufficient to overcome the
presumption that counsel was effective. E.g., James v. State, 2013 Ark. 290, at 4. Harris never
presented any evidence at either the sentencing hearing or in his Rule 37 proceedings to
support his allegations. Jurors are presumed to be unbiased, and the burden is on the
appellant to show otherwise. E.g., McIntosh v. State, 340 Ark. 34, 38, 8 S.W.3d 506, 509
(2000). Because Harris failed to show any bias or misconduct, his trial counsel was not
deficient for failing to file a meritless posttrial motion based on such an allegation. Boatright
v. State, 2014 Ark. 66, at 6; see also Monts v. State, 312 Ark. 547, 549, 851 S.W.2d 432, 434
(1993) (holding counsel was not deficient for declining to make a meritless argument).
Accordingly, we hold that the circuit court did not clearly err by rejecting Harris’s claim.
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Cite as 2017 Ark. App. 381
Harris’s second point on appeal is that the circuit court clearly erred by rejecting his
claim that Beckham was ineffective for failing to ensure that his plea to the charge of
possession of a firearm by certain persons was knowingly, voluntarily, and intelligently made.
He also argues that, regardless of Beckham’s performance, his conviction for possession of a
firearm by certain persons should be set aside because the record demonstrates that he did
not enter a knowing, intelligent, or voluntary plea to that charge. The circuit court rejected
both arguments, finding that the evidence demonstrated that Harris entered his no-contest
plea voluntarily and intelligently and that Harris failed to demonstrate that his trial counsel’s
representation fell short of an objective standard of reasonableness with respect to the plea.
However, when a petitioner enters a plea of guilty, Rule 37.2 provides that a petition
must be filed within ninety days of the date that the judgment was entered of record. Ark.
R. Crim. P. 37.2(c)(i). The time limitations imposed in Rule 37.2(c) are jurisdictional in
nature, and if they are not met, the circuit court lacks jurisdiction to grant postconviction
relief. Ussery v. State, 2014 Ark. 186; Talley v. State, 2012 Ark. 314 (per curiam); Benton v.
State, 325 Ark. 246, 925 S.W.2d 401 (1996) (per curiam). The judgment regarding Harris’s
plea was entered on January 27, 2012. 3 Thereafter, Harris had ninety days to file his Rule
37 petition regarding his plea. See Ark. R. Crim. P. 37.2(c)(i). Harris’s petition was filed on
February 19, 2013––well after the ninety-day time limit had passed. Therefore, the portion
of his petition regarding his plea was not timely filed because Harris filed it more than ninety
3
The sentencing order reflects a negotiated plea of guilty, but it was actually a
negotiated plea of nolo contendere, or no contest. There is no distinction between guilty
pleas and pleas of no contest for purposes of Rule 37.1. See Seaton v. State, 324 Ark. 236,
920 S.W.2d 13 (1996).
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Cite as 2017 Ark. App. 381
days after the judgment had been entered of record. Accordingly, the circuit court had no
jurisdiction to grant the relief sought. When the lower court lacks jurisdiction, the appellate
court also lacks jurisdiction. Ussery, 2014 Ark. 186; Winnett v. State, 2012 Ark. 404 (per
curiam). Accordingly, the order of the circuit court is affirmed as to Harris’s convictions of
criminal use of a prohibited weapon, two counts of possession of a controlled substance with
intent to deliver, and simultaneous possession of drugs and firearms, and dismissed as to the
plea of no contest to the charge of possession of a firearm by certain persons.
Affirmed in part; dismissed in part.
GLADWIN and GLOVER, JJ., agree.
Craig Lambert, for appellant.
Leslie Rutledge, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.
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