APPEAL FROM THE BRADLEY COUNTY CIRCUIT COURT. NO. CR-2005-24-3. HONORABLE ROBERT BYNUM GIBSON, JR., JUDGE.
Harrelson Law Firm, P.A., by: Jeff Harrelson, for appellant.
Dustin McDaniel, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.
DONALD L. CORBIN, Associate Justice.
Appellant Derek Sales appeals the order of the Bradley County Circuit Court denying his request for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.5 (2009). On appeal, Sales asserts tat the circuit court erred in denying his petition because his trial counsel were ineffective (1) during the sentencing phase of his capital-murder trial by informing the jury that if Sales was sentenced to life imprisonment, there was
a possibility that he might be pardoned by the governor; and (2) during opening statements after referring to Sales's escape from jail while he awaited trial. We find no error and affirm.
Sales was convicted in the Bradley County Circuit Court of the capital murder and aggravated robbery of Willie York and was sentenced to death and life imprisonment, respectively. This court affirmed his convictions and sentences in Sales v. State, 374 Ark. 222, 289 S.W.3d 423 (2008), cert. denied, 556 U.S. 1190, 129 S.Ct. 2000, 173 L.Ed.2d 1098 (2009). The underlying facts surrounding Sales's crime are set forth in detail in that case, and only a brief recitation of the facts is necessary here.
Willie York, whom Sales knew and visited, was found murdered in his home on April 16, 2005. York, who suffered from rheumatoid arthritis, had very limited use of his hands and could not walk. For this reason, York was mostly confined to a recliner and a bed that was kept in the living room of his home. It was adduced at trial that Sales was aware that York, who sold beer by the can out of his home, used a cigar box as a cash register and as storage for some personal papers. Sales was also aware of the fact that York kept this cigar box near him at all times.
On the day of the murder, Sales was at the York home several times and purchased several beers from York. When York's family left his home at approximately 6:30 that evening, Sales was there, and he was still there later in the evening when York's granddaughters brought him dinner and when York's daughter stopped by for a short visit. Later that night, two of York's granddaughters went to the home to help York get into bed. When they arrived at the house, they could not see York sitting in his recliner and then noticed a shadowy figure, whom they recognized as Sales, moving about the house. Concerned, they called 911. One of the officers at the scene confronted Sales on the front porch of the home, and after Sales tried to flee, he was taken into custody. York was then found inside the home lying in a pool of blood on the floor. He was pronounced dead at the scene, and the medical examiner later determined that there were three possible causes of his death: strangulation, blunt-force trauma to the abdomen, head, and chest, and a stab wound of the neck. Sales was subsequently charged with residential burglary, aggravated robbery, and capital murder, although the residential burglary charge was later nol-prossed.
Sales filed his initial petition pursuant to Rule 37.5 on August 10, 2009. Thereafter, he sought and received permission from the circuit court to file an amended petition, which he filed on August 17, 2009. In his amended petition, Sales set forth numerous allegations, including allegations of ineffective assistance of counsel, in support of his claim for postconviction relief. The circuit court held an evidentiary hearing on the petition on September 9, 2009, and entered an order on October 8, 2009, denying Sales's Rule 37.5 petition. Sales appealed that decision to this court, asserting only two claims of error, which are the points now raised in the instant appeal. This court reversed the circuit court's order and remanded the matter with instructions that the circuit court enter specific findings of fact and conclusions of law on the two claims raised by Sales in his appeal. Sales v. State,
2013 Ark. 218.
Upon remand, the circuit court entered an order consistent with our opinion but
again denied Sales's request for relief. In this order, filed on June 7, 2013, the circuit court first addressed Sales's allegation that counsel's reference to his escape constituted ineffective assistance of counsel and reversed its previous finding that the reference was " probably" strategic in nature. The circuit court noted that the escape reference, made during counsel's opening statement, " was both unnecessary and foolish," particularly where the court had ordered in a previous pretrial hearing that any evidence related to the escape would be excluded under Arkansas Rule of Evidence 403. But, the court went on to note that the reference was merely to the fact that Sales had escaped, and not to any specific conviction for escape and that there was no further mention of any escape. The circuit court then concluded ...