Adkins v. State , 2015 Ark. LEXIS 552 ( 2015 )

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SUPREME COURT OF ARKANSAS
No. CR-15-40
JOSEPH ADKINS Opinion Delivered September 24, 2015
APPELLANT
PRO SE MOTION TO FILE BELATED
V. REPLY BRIEF AND PRO SE APPEAL
FROM THE LONOKE COUNTY
CIRCUIT COURT
STATE OF ARKANSAS [NO. 43CR-13-128]
APPELLEE
HONORABLE BARBARA ELMORE,
JUDGE
AFFIRMED; MOTION DENIED.
PER CURIAM
In 2013, appellant Joseph Adkins entered guilty pleas to two counts of aggravated
robbery and one count of theft of property, and residential burglary.1 The trial court imposed
an aggregate sentence of 360 months’ imprisonment in the Arkansas Department of Correction,
with an additional 120 months’ suspended. Adkins filed a petition for postconviction relief
under Arkansas Rule of Criminal Procedure 37.1 (2014) that the trial court dismissed for lack
of verification. On appeal of that order, this court held that the verification attached to a
separate but contemporaneously filed motion was adequate, and we reversed and remanded for
the trial court to address the merits of the petition. Adkins v. State, 2014 Ark. 349, 438 S.W.3d
914 (per curiam). On remand, the trial court entered an order that denied and dismissed the
petition. Adkins lodged an appeal of the new order in this court, and, after the briefs were
1
The judgment reflects that the pleas for theft of property and residential burglary were
negotiated pleas and that the pleas on the two counts of aggravated robbery were made directly
to the court.
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submitted, he filed this motion to file a belated reply brief. We deny the motion and affirm the
order.
The State filed its brief on April 3, 2015. Our rules required that Adkins submit copies
of his reply brief within fifteen days of that date. Ark. Sup. Ct. R. 4-7(d)(3) (2014). The end of
the required period fell on a weekend day, and the last day for filing the reply brief was therefore
extended until Monday, April 20, 2015. Ark. R. Crim. P. 1.4. Adkins tendered a reply brief to
this court on April 28, 2015. The tendered brief was returned to Adkins because it was not
timely submitted and because it was overlength.
In his motion, Adkins seeks to establish cause for the delay in his tender of the brief by
alleging that he had believed that the time period for filing the brief was thirty days and that he
was unaware of the actual time limitation. Adkins indicates that he must rely on other inmates,
who are not well versed in the law, for assistance. He also alleges that the postmark for service
on him of the State’s brief indicates that the brief, which had been filed on a Friday, had not
been posted until the following Monday and that he did not receive the brief until April 7, 2015.
Adkins asserts that the time frame should be extended for the circumstances, but, even
with the extension he seeks, the reply brief was still submitted well after the filing deadline.2
Adkins contends that this court should excuse the delay in filing because the State failed to
timely post its responsive brief. Rule 1.4 allows adequate additional time in consideration of
such potential posting delays. Even if the prescribed period of time had been extended so that
2
Adkins also appears to contend that the computation procedures from Arkansas Rule
of Civil Procedure 6(a) should apply to exclude intermediate weekend days. Rule 6 only
provides for the exclusion of intermediate weekend days where the prescribed time period is less
than fourteen days, and the exclusion would therefore not apply under any circumstances.
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it commenced on the date that Adkins contends that he received the brief, the reply brief would
not have been timely submitted. The circumstances that Adkins points to do not establish cause
for the delay.
As for Adkins’s claim that he was unaware of the time limitations, his ignorance of the
applicable procedural rules does not excuse him from conforming to the prevailing rules of
procedure. See Butler v. State, 2015 Ark. 173 (per curiam). We need not consider Adkins’s
arguments concerning the length of the reply brief because he failed to demonstrate good cause
for filing the reply brief outside the required time.
We next turn to Adkins’s appeal of the order that denied postconviction relief. Adkins’s
Rule 37.1 petition alleged a number of claims of ineffective assistance of counsel. He also
alleged that his confession was coerced, that evidence was obtained from an unlawful arrest, that
there was prosecutorial misconduct resulting from the prosecutor’s having employed and having
known the victims, and that Adkins was denied a fair trial as a result of this relationship between
the prosecutor and the victims. Adkins’s final claim in the petition was that he was mentally
incompetent.
The trial court denied the Rule 37.1 petition without a hearing. In the order denying
relief, the trial court pointed to portions of the record that contradict a number of Adkins’s
claims, found that some claims were conclusory, and indicated that Adkins’s claims of ineffective
assistance of counsel did not satisfy the applicable standard because the claims did not
demonstrate prejudice.
This court will not reverse the trial court’s decision granting or denying postconviction
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relief unless it is clearly erroneous. Houghton v. State, 2015 Ark. 252, ___ S.W.3d ___. 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.
On appeal, Adkins asserts that the trial court’s findings were insufficient and that he
should have been provided an attorney and a hearing to vet issues concerning trial strategy. He
raises a number of claims concerning counsel’s failure to challenge the sufficiency of the
information charging him, counsel’s failure to challenge the determination of his competency,
and the trial court’s failure to follow proper procedure in accepting his plea. Some of Adkins’s
arguments are not clear, but there are a number of allegations and arguments in his brief that
were not raised in the Rule 37.1 petition.
An appellant is limited to the scope and nature of the arguments he made below and that
were considered by the circuit court in rendering its ruling. Feuget v. State, 2015 Ark. 43, 454
S.W.3d 734. We have routinely held that we will not hear arguments raised for the first time on
appeal. Nooner v. State, 339 Ark. 253, 4 S.W.3d 497 (1999). Accordingly, we need address only
arguments made on appeal that relate to the adequacy of the trial court’s findings and procedure
and to those claims made in the Rule 37.1 petition.
Adkins contends that the trial court’s findings were not adequate to support a summary
disposition under Arkansas Rule of Criminal Procedure 37.3(a). Yet, a hearing is not required
on every petition for postconviction relief. Houghton, 2015 Ark. 252, ___ S.W.3d ___. Where
the circuit court outlines an appellant’s claims and the reasons for its denial of those claims, the
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findings are adequate for our review. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55. The
circuit court provided findings in this case that outlined the claims and its reasons for denial.
Adkins contends that a hearing was necessary in order to fully develop issues concerning
counsel’s trial strategies. Yet, Adkins did not raise an issue concerning counsel’s strategy, and
the circuit court’s findings on Adkins’s claims did not rely on any conclusion that counsel was
not ineffective because the allegedly deficient performance resulted from a strategic decision.
Adkins has not demonstrated that a hearing was required or that the trial court’s findings were
not adequate.
Adkins makes a number of arguments on appeal asserting that counsel should have been
appointed to him based on the United States Supreme Court’s holdings in Martinez v. Ryan, 132
S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013). This court has held that those
cases do not require states to make provision for every petitioner in a collateral attack on a
judgment to have counsel. Stalnaker v. State, 2015 Ark. 250, ___ S.W.3d ___ (per curiam).
Moreover, the Rule 37.1 petition did not cite Martinez or Trevino with Adkins’s request for
counsel. Accordingly, we need not address the issue further. Watson v. State, 2014 Ark. 203, 444
S.W.3d 835; see also Mancia v. State, 2015 Ark. 115, 459 S.W.3d 259.
Adkins argues on appeal that his counsel was ineffective. Our review of claims of
ineffective assistance of counsel follows the standard set forth in Strickland v. Washington, 466
U.S. 668 (1984). Smith v. State, 2015 Ark. 165, 459 S.W.3d 806. Under that two-prong analysis,
to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1)
counsel’s performance was deficient and (2) the deficient performance prejudiced his defense.
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Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895. The reviewing court must indulge in a strong
presumption that trial counsel’s conduct falls within the wide range of reasonable professional
assistance. Watson v. State, 2014 Ark. 203, 444 S.W.3d 835. The defendant claiming ineffective
assistance of counsel 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. Id. Here, the circuit
court found that Adkins did not demonstrate prejudice.
As to the prejudice requirement under the Strickland standard, a petitioner must show that
there is a reasonable probability that the fact-finder’s decision would have been different absent
counsel’s errors. Rasul v. State, 2015 Ark. 118, 458 S.W.3d 722. A reasonable probability is a
probability sufficient to undermine confidence in the outcome of the trial. Id. In order to show
prejudice in the context of a guilty plea, the petitioner must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial. Mancia, 2015 Ark. 115, 459 S.W.3d 259. An appellant who has entered
a guilty plea normally will have considerable difficulty in proving any prejudice as the plea rests
upon an admission in open court that the appellant did the act charged. Id.
Adkins’s first claim of ineffective assistance in his brief alleges that trial counsel failed to
challenge the defective criminal informations charging him. That claim was not raised in the
Rule 37.1 petition.
Adkins next alleges that counsel was ineffective for failing to challenge his mental
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evaluation and what was apparently a determination that he was competent.3 Interwoven with
this claim are allegations that counsel did not sufficiently investigate Adkins’s prior medical
records and history of addiction, that Adkins was coerced into entering his plea, that the trial
court failed to follow proper procedure in taking his plea, and that the holding in Trevino changed
the standard that should be applied to ineffective-assistance claims. The Rule 37.1 petition did
not include any argument that a new standard should apply to ineffective-assistance claims, and
it did not raise a challenge to the plea procedure.
To the extent that the Rule 37.1 petition could be construed to raise a claim of ineffective
assistance for failure to challenge the mental evaluation and its conclusion of competency, it was
not clearly erroneous for the circuit court to find that Adkins failed to demonstrate prejudice.
In the Rule 37.1 petition, Adkins alleged that certain medical records were not provided to the
professional who evaluated him, that he was intoxicated at the time that the crimes were
committed, and that the length of time for the examination was not sufficient for an adequate
evaluation. Adkins did not provide any information in the Rule 37.1 petition concerning the
specific contents of the medical records that he alleged should have been considered in evaluating
him. Adkins asserted in the Rule 37.1 petition that the psychiatric exam that was conducted was
3
Neither the record in this case nor the record for the earlier appeal in the same
proceedings includes a copy of a mental evaluation. The record in the earlier appeal remanding
for proceedings on the merits of the Rule 37.1 petition, however, does include an order for
psychiatric examination and a letter reflecting that the ordered forensic examination had been
completed prior to the date that Adkins’s plea was entered. We take judicial notice of the record
from the earlier appeal without need to supplement the record. See Davis v. State, 2013 Ark. 118
(per curiam); Drymon v. State, 327 Ark. 375, 938 S.W.2d 825 (1997) (per curiam). As noted,
Adkins alleged he was incompetent in his Rule 37.1 petition, and, from statements in his brief
and the Rule 37.1 petition, he appears to believe that he was found competent.
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insufficient because it was too short in duration. He did not indicate what would have been
discovered if a longer psychiatric examination had been undertaken.
Bald statements of a history of psychiatric treatment and alcoholism or other addiction
are not sufficient to establish the existence of a mental disease or defect. See Nance v. State, 339
Ark. 192, 4 S.W.3d 501 (1999). Voluntary intoxication is not a defense, and counsel’s decision
not to pursue such a defense is not ineffective assistance. Flowers v. State, 2010 Ark. 364, 370
S.W.3d 228 (per curiam); see also Miller v. State, 2010 Ark. 1, 362 S.W.3d 264.
Although Adkins attempts to elaborate on the basis for his claims of coercion on appeal,
those claims made in the Rule 37.1 petition consisted only of the argument that he was coerced
by his lawyer’s reassurances that he would receive a lesser sentence if he entered a plea to the
court instead of entering a negotiated plea. Coercion is compulsion of a free agent by physical,
moral, or economic force or threat of physical force. White v. State, 2015 Ark. 151, 460 S.W.3d
285. The discussion by an attorney of factors that may lead to a higher sentence does not, of
itself, mean that a plea was compelled. Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982). It
is well settled that a plea of guilty that is induced by the possibility of a more severe sentence does
not amount to coercion. Akin v. State, 2011 Ark. 477 (per curiam); see also Thomas v. State, 277
Ark. 74, 639 S.W.2d 353 (1982).
Adkins did not submit facts in his petition for postconviction relief to support a finding
of coercion or that counsel was otherwise ineffective. The burden is entirely on the claimant to
provide facts that affirmatively support his or her claims of prejudice. Carter v. State, 2015 Ark.
166, 460 S.W.3d 781. Neither conclusory statements nor allegations without factual
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substantiation are sufficient to overcome the presumption that counsel was effective, and such
statements and allegations will not warrant granting postconviction relief. Id. Because Adkins
has not demonstrated error in the circuit court’s findings, we affirm.
Affirmed; motion denied.
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