Mister v. State.2

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SUPREME COURT OF ARKANSAS
No. CR-13-951
SHARVELT MARQUETTE MISTER Opinion Delivered October 30, 2014
APPELLANT
APPEAL FROM THE SEBASTIAN
V. COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT
[NO. CR-10-1320]
STATE OF ARKANSAS
APPELLEE HONORABLE JAMES O. COX,
JUDGE
AFFIRMED.
CLIFF HOOFMAN, Associate Justice
Appellant Sharvelt Marquette Mister appeals from the circuit court’s denial of his
petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. He
argues on appeal that his trial counsel was ineffective for (1) failing to effectively communicate
and inform him of a global plea offer; (2) failing to make a proper Batson challenge; (3) failing
to pursue a motion to be relieved as counsel; and (4) not being adequately prepared for trial.
We have jurisdiction of this appeal pursuant to Rule 37 and Arkansas Supreme Court Rule
1-2(a)(8) (2013). We affirm.
On August 17, 2011, Mister was convicted by a Sebastian County jury of delivery of
cocaine, a class Y felony, for which he was sentenced by the circuit court to twenty-five years’
imprisonment and a suspended sentence of twenty-five years. Mister appealed his conviction,
arguing that the circuit court erred in denying his challenge pursuant to Batson v. Kentucky,
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476 U.S. 79 (1986), based on the State’s dismissal of two potential jurors—both African
American. On January 30, 2013, the Arkansas Court of Appeals affirmed the judgment in
Mister v. State, 2013 Ark. App. 49, finding that the State had given racially neutral reasons for
striking the jurors, which were not rebutted by Mister, and that the circuit court’s denial of
Mister’s Batson challenge was not clearly erroneous. The court of appeals noted that the
circuit court had also found that the Batson challenges were untimely and agreed with Mister
that this was erroneous; however, because the circuit court had nonetheless proceeded to have
the State supply its reasons for striking the jurors and had ruled on the issue, the court of
appeals addressed the merits of the Batson argument and affirmed Mister’s conviction. Id.
Mister filed a timely Rule 37.1 petition on April 19, 2013, alleging that his trial
counsel was ineffective by (1) not adequately informing him of a global plea offer; (2) not
making a proper Batson challenge; (3) raising his prior convictions during trial; (4) not
pursuing a motion to be relieved as counsel; and (5) not being adequately prepared for trial.
A hearing was held on Mister’s petition, at which Mister testified that he and his trial counsel,
Naif Khoury, had a “bumpy” relationship. While Mister testified that Khoury had
communicated to him global plea offers of thirty years and twenty-five years, which would
have covered this case, as well as other related cases, Mister claimed that he did not
understand the offers or how the State had calculated his total potential “exposure” of 117
years. Mister testified that he did not necessarily reject the offers but needed his counsel to
better explain the calculations to him. Mister stated that there was also an offer of twenty-
three years by the State of which he had not been aware and that he had told Khoury he
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wanted to take a twenty-year plea offer. Mister testified that he thought he had come to
court to agree to the twenty-year plea but instead ended up going through the trial and being
convicted. He stated that he had requested that Khoury be removed from his case and that
Khoury had filed a motion to be relieved in his revocation case, but it had been denied by the
circuit court.
Mister testified that Khoury had obtained co-counsel, Mosie Boyd, but that Mister
first met her only a few days before the trial. Mister stated that he had signed a note
indicating his agreement to have Boyd represent him and to admit his guilt to the delivery
charge in the hope that he would avoid a life sentence. He also agreed that he was informed
by his counsel that the jury would learn of his prior convictions and sentences during his
testimony. However, Mister claimed that he was not adequately prepared by counsel
regarding what questions would be asked of him.
With regard to the global plea offer, while Khoury agreed with Mister that he had
been ineffective in his attempts to have Mister fully understand and appreciate the
ramifications of the plea, Khoury also testified that he and Mister were of the opinion that the
State’s informant was “less than credible” and that Mister had “adopted the stance that he
would refuse a global offer because both he and I thought it was a type of prosecutorial
extortion and that he would go to trial.” Khoury testified that he had communicated to the
State that Mister would agree to a twenty-year plea but that the State had refused and had
never actually made that particular plea offer. According to Khoury, he had increasing
difficulties communicating with Mister and therefore had obtained the assistance of co-
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counsel, Boyd. Khoury indicated that their strategy had been to seek mercy from the jury in
order to avoid a life sentence and that this strategy had worked because the jury deadlocked
and was unable to agree on a sentence.
Boyd testified that she was hired as co-counsel less than one week before trial but that
she had discussed Mister’s case with Khoury prior to that time. She testified that she had also
participated as co-counsel in Mister’s trial in a separate case the week before the trial in this
case. Boyd stated that this was her first time to serve as lead counsel but that she felt she was
adequately prepared under the circumstances. With regard to the Batson challenge, Boyd
agreed that the circuit court had erred in finding it untimely and that she had not presented
any follow-up argument to the State’s race-neutral reasons, but she also testified that she had
no idea what follow-up argument she could have offered, even with additional time to
prepare. Boyd agreed that their strategy in this case was to appeal to the mercy of the jurors
and to avoid a life sentence and that Mister had elected to pursue this particular strategy. She
admitted that she was disappointed with some of Mister’s answers to questions during his
testimony, which she indicated were unexpected and then allowed the State to admit
evidence of his prior convictions.
Following the hearing, the circuit court denied Mister’s Rule 37 petition. The court
found that Mister’s claim regarding the global plea offer had previously been litigated and
ruled upon in a postconviction proceeding in his revocation case, as evidenced by the circuit
court’s findings of fact in the prior case that were introduced into evidence by the State at the
hearing. Thus, the circuit court found that Mister was precluded from re-litigating this
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particular claim. The court further found that the only “true factual allegation” made by
Mister in his petition was his allegation that defense counsel presented no viable defense to
the charge against him. However, the court ruled that the decision to admit guilt and seek
mercy from the jury was a strategic and tactical decision of counsel, made with Mister’s
explicit knowledge and approval. The court also noted that the jury’s inability to reach a
unanimous verdict on a sentence showed that counsels’ strategy was effective and that Mister
had failed to prove ineffective assistance of counsel or prejudice with regard to this allegation.
An order to this effect was entered on September 4, 2013, and Mister timely appealed from
the circuit court’s denial of postconviction relief.
A circuit court’s denial of a Rule 37 petition will not be reversed unless the court’s
findings are clearly erroneous. Lockhart v. State, 2011 Ark. 461. In an appeal from a denial
of postconviction relief based on a claim of ineffective assistance of counsel, the sole question
presented is whether, based on a totality of the evidence under the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984), the circuit court clearly erred in holding that
counsel’s performance was not ineffective. Lockhart, 2011 Ark. 461, at 2. Under the Strickland
test, the petitioner must show that counsel’s performance was deficient and also that counsel’s
deficient performance prejudiced the defense to the extent that the appellant was deprived of
a fair trial. Lowe v. State, 2012 Ark. 185, ___ S.W.3d ___. With respect to the prejudice
requirement, a petitioner must demonstrate that there is a reasonable probability that the fact-
finder’s decision would have been different absent counsel’s errors. Id. A reasonable
probability is a probability that is sufficient to undermine confidence in the outcome of the
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trial. Id. There is a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance, and a petitioner has the burden of overcoming this
presumption by identifying specific acts or omissions of counsel that, when viewed from
counsel’s perspective at the time of trial, could not have been the result of professional
judgment. Id. The burden is also entirely on appellant to provide facts affirmatively
supporting the claims of prejudice. Id.
Although Mister raised five allegations of ineffective assistance of counsel in his petition
to the circuit court, he fails to present any argument on appeal with regard to his claim that
counsel was ineffective for allowing his prior convictions to be admitted during the trial. As
the State contends, arguments not raised on appeal are deemed abandoned and will not be
addressed. Springs v. State, 2012 Ark. 87, 387 S.W.3d 143.
In addition, although he briefly asserts in one or two sentences that Boyd had less than
one week to prepare for trial and that she admitted making mistakes, Mister fails to make any
further argument on appeal with regard to the allegation in his petition that trial counsel failed
to adequately prepare for trial, and he also fails to make any claim of prejudice with regard to
this allegation. Conclusory allegations cannot be the basis for postconviction relief, and the
burden is on appellant to provide facts to support his claims and to affirmatively prove
prejudice. Id. Thus, the circuit court did not clearly err in denying relief on this claim.
Mister does argue on appeal, as he did in his Rule 37 petition, that counsel was
ineffective for failing to adequately communicate to him and explain the global plea offers
made by the State prior to his trial. However, the circuit court found that Mister was barred
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from re-litigating this claim based on the findings of fact and conclusions of law entered by
the circuit court in a previous postconviction proceeding in a separate case. The order
containing these findings and conclusions by the previous circuit court was admitted into
evidence in this case and stated that the decision to reject the global plea offer was a matter
of “trial tactics and strategy” and was “supported by reasonable professional judgment, which
cannot form a proper basis for relief under Rule 37.1.”
The concept of res judicata has two facets, issue preclusion and claim preclusion. Mason
v. State, 361 Ark. 357, 206 S.W.3d 869 (2005). Under the doctrine of issue preclusion, a
decision by a court of competent jurisdiction on matters which were at issue, and which were
directly and necessarily adjudicated, bars any further litigation on those issues by the plaintiff
or his privies against the defendant or his privies on the same issue. Id. Furthermore, we have
held that this doctrine applies in criminal cases as well as civil proceedings, and when an issue
of ultimate fact has once been determined by a valid and final judgment, that issue cannot
again be litigated between the same parties in any future lawsuit. Id.
Mister fails to offer any argument on appeal with regard to the circuit court’s basis for
its ruling on this claim, which was that he was “precluded from re-litigating the strategic and
tactical reasons for his rejection” of the global plea offers. Arguments unsupported by
convincing argument or authority will not be addressed by this court on appeal. Polivka v.
State, 2010 Ark. 152, 362 S.W.3d 918. Furthermore, as the circuit court noted in its ruling,
the decision to reject the global plea offer in this case was a strategic and tactical one by Mister
and his counsel, and we have repeatedly held that matters of trial strategy and tactics, even if
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arguably improvident, fall within the realm of counsel’s professional judgment and are not
grounds for a finding of ineffective assistance of counsel. Springs, supra. Thus, the circuit
court did not clearly err in its finding with respect to this claim.
Mister also argues on appeal that Khoury was ineffective for failing to pursue a motion
to withdraw that was denied by the circuit court and that Boyd was ineffective for failing to
make a sufficient Batson challenge. However, the circuit court did not rule on these particular
allegations in its order denying Mister’s petition. It is petitioner’s burden to obtain rulings on
all ineffective-assistance claims, and the failure to obtain a ruling precludes appellate review
of that claim. Eastin v. State, 2010 Ark. 275. Thus, Mister has failed to demonstrate that the
circuit court clearly erred in denying his petition for postconviction relief, and we affirm.
Affirmed.
Andrew Vess, for appellant.
Dustin McDaniel, Att’y Gen., by: LeaAnn J. Adams, Ass’t Att’y Gen., for appellee.
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