Thomas v. State

Cite as 2014 Ark. 207
ARKANSAS SUPREME COURT
No. CR-13-842
Opinion Delivered May 8, 2014
EUGENE THOMAS, III
APPELLANT PRO SE MOTION FOR DUPLICATION
OF APPELLANT’S BRIEF AT PUBLIC
v. EXPENSE,
[ASHLEY COUNTY CIRCUIT COURT,
STATE OF ARKANSAS NO. 02CR-10-155]
APPELLEE
APPEAL DISMISSED; MOTION
MOOT.
PER CURIAM
In 2011, appellant Eugene Thomas, III, entered a plea of guilty to aggravated robbery and
commercial burglary. He was then sentenced by a jury to an aggregate term of 240 months’
imprisonment. The Arkansas Court of Appeals affirmed the sentence. Thomas v. State, 2012 Ark.
App. 466, ___ S.W.3d ___.
Subsequently, appellant filed in the trial court a timely, verified pro se petition for
postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). The petition
was denied, and appellant appealed to this court.
Now before us is appellant’s motion to have his brief-in-chief duplicated at public
expense. We need not consider the merits of the motion because it is clear from the record that
appellant could not prevail if an appeal were permitted to go forward. An appeal from an order
that denied a petition for postconviction relief will not be allowed to proceed where it is clear
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that the appellant could not succeed. Dodge v. State, 2014 Ark. 116 (per curiam). Accordingly,
the appeal is dismissed, and the motion is moot.
The claims raised in the petition concerned whether appellant’s attorney afforded him
effective assistance at trial and on direct appeal and, to a lesser degree, whether the evidence was
sufficient to sustain the judgment of conviction. A review of the record and the order reveals
that there was no merit to the Rule 37.1 petition.
To the extent that any allegation in the petition was intended to challenge the
sufficiency of the evidence to sustain the judgment, it would appear that appellant
misunderstood the scope of a Rule 37.1 proceeding in his case. Because appellant entered a
plea of guilty, the issue of his guilt was not a matter to be decided by the jury, which was
empaneled to consider sentencing only. Moreover, even in cases wherein there was a trial to
the jury on the issue of the defendant’s guilt, Rule 37.1 does not provide a means to attack
the weight of the evidence to support the conviction. See Williams v. State, 2013 Ark. 375
(per curiam); Pride v. State, 285 Ark. 89, 684 S.W.2d 819 (1985) (per curiam). Any assertion
that is a direct challenge to the sufficiency of the evidence is not cognizable under Rule 37.1.
2010 Ark. 300, 327 S.W.3d 538.
With respect to the numerous assertions of ineffective assistance of counsel contained
in the Rule 37.1 petition, when considering an appeal from a trial court’s denial of a Rule
37.1 petition based on ineffective assistance of counsel, the sole question presented is whether,
based on a totality of the evidence under the standard set forth by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668 (1984), the trial court clearly erred in holding
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that counsel’s performance was not ineffective. Taylor v. State, 2013 Ark. 146, ___ S.W.3d
___.
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.
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. 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, ___ S.W.3d ___. 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
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would have been different absent the errors. Howard v. State, 367 Ark. 18, 238 S.W.3d 24
(2006). 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 components of
the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at
697.
In his petition, appellant did not challenge counsel’s representation with respect to the
entry of the guilty plea. His petition concerned the sentencing by the jury and the direct
appeal from the sentencing proceeding. He argued that counsel was ineffective in that counsel
did not formulate any kind of trial strategy; did not voir dire the jury on the presumption of
innocence, burden of proof, and the “corpus delicti rule” requiring the State to prove the
intent to commit the offense other than relying on “his stand-alone confession”; erred in
admitting in the opening statement and closing argument that appellant was guilty and thus
violated appellant’s right to avoid self-incrimination and failed to argue in the closing
argument that the State had not proved its case regarding intent beyond a reasonable doubt;
did not seek the corpus delicti jury instruction; failed to raise on appeal convincing arguments
concerning the trial court’s denial of a motion for mistrial; failed to raise on appeal the denial
of his motion for directed verdict; did not adequately research, prepare, amend, and perfect
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the appeal. The allegations of ineffective assistance of counsel were not sufficient to establish
that appellant was entitled to relief under Rule 37.1.
When appellant entered his plea of guilty, that proceeding was his trial, which established
his guilt. Williams v. State, 2011 Ark. 203 (per curiam). When a defendant pleads guilty, the only
claims cognizable in a proceeding pursuant to Rule 37.1 are those that allege that the plea was
not voluntarily and intelligently entered with effective assistance of counsel. Jamett v. State,
2010 Ark. 28, 358 S.W.3d 874 (per curiam). Appellant does not contend that his plea was not
made voluntarily and intelligently, or that his plea was not made on the advice of competent
counsel. The allegations pertaining to presumption of innocence, intent to commit the offense,
and self-incrimination are not cognizable as appellant’s guilt was not at issue in the sentencing
proceeding.
As to the remaining allegations of ineffective assistance of counsel, appellant failed to
show that counsel made any specific error that would undermine confidence in the jury’s
decision within the framework of Strickland. The claims asserted by appellant were essentially
conclusory statements without the factual substantiation required to establish ineffective
assistance of counsel. A claim of ineffective assistance of counsel must be supported by facts
sufficient to overcome the presumption that counsel was effective. See Mathis v. State, 2014 Ark.
148 (per curiam). Appellant did not explain why any particular jury instruction was warranted
nor did he state what arguments appellant could have made on appeal that would have been
meritorious. To succeed on an allegation that counsel should have made an argument in the trial
court or on appeal, the burden is on the petitioner to submit facts to support the proposition
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that a specific, meritorious argument could have been made and that failing to raise that specific
argument would not have been a decision supported by reasonable professional judgment. See
Montgomery v. State, 2014 Ark. 122.
On the issue of whether trial counsel’s strategy was effective, trial strategy is largely a
subjective issue about which seasoned advocates could disagree. An approach that may prove
effective in one instance may fail entirely in another. Counsel is allowed great leeway in making
strategic and tactical decisions. See Ellis v. State, 2014 Ark. 24 (per curiam). Matters of trial
strategy, even if the strategy proves improvident, are not grounds for granting postconviction
relief. Prater v. State, 2012 Ark. 164, 402 S.W.3d 68; Fretwell v. State, 292 Ark. 96, 728 S.W.2d 180
(1987) (per curiam). Nevertheless, the decisions must be based on reasonable professional
judgment. Clarks v. State, 2011 Ark. 296 (per curiam); Leak v. State, 2011 Ark. 353 (per curiam).
Here, appellant fell far short of establishing that counsel’s conduct was outside the bounds of
reasonable professional judgment.
Appeal dismissed; motion moot.
Eugene Thomas, III, pro se appellant.
No response.
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