APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT. NOS. CR-2000-1053, CR-2001-238/239, CR-2007-953/969E. HONORABLE STEPHEN TABOR, JUDGE.
Andrew Vess, for appellant.
Dustin McDaniel, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.
JOSEPHINE LINKER HART, Associate Justice.
Upon the circuit court's revocation of his six suspended sentences for controlled-substance convictions, appellant, Sharvelt Marquette Mister, was sentenced to a total of 57 years' imprisonment. The Arkansas Court of Appeals affirmed the circuit court's decision. Mister v. State, 2012 Ark.App. 375. Mister
then filed a petition for postconviction relief under Rule 37.1 of the Arkansas Rules of Criminal Procedure. Following a hearing, the circuit court denied the petition, and Mister now appeals. On appeal, Mister argues that his trial counsel was ineffective because counsel never explained to him his maximum sentencing exposure and also misled him about a plea offer. We hold that the circuit court did not clearly err in denying relief and affirm.
In an appeal from the denial of postconviction relief, this court considers whether, based on the totality of the evidence, the circuit court clearly erred in holding that counsel's performance was not ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See, e.g., Cothren v. State, 344 Ark. 697, 703, 42 S.W.3d 543, 547 (2001). Under Strickland, a petitioner raising a claim of ineffective assistance of counsel must first 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. Strickland, 466 U.S. at 687. A petitioner making an ineffective-assistance-of-counsel claim must show that counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. In doing so, the claimant must overcome a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. at 689. Further, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Id. at 687. Such a showing requires that the petitioner demonstrate a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Id. at 694.
In 2001, Mister was sentenced on each of three controlled-substance offenses to nineteen years' imprisonment with an additional suspended imposition of sentence of ten years. The record further shows that in 2007, he was sentenced on each of three controlled-substance offenses to twelve years' imprisonment with a suspended imposition of sentence of eight years. In 2010, the State petitioned to revoke the six suspended sentences. The circuit court granted the State's petition, and Mister was sentenced to twenty-one years' imprisonment on each of the three 2001 convictions and eighteen years' imprisonment on each of the three 2007 convictions. The court ran the three twenty-one-year sentences concurrently, ran two of the eighteen-year sentences concurrently but consecutive to the three twenty-one-year sentences, and ran the third eighteen-year sentence consecutively to both the three twenty-one year sentences and the two eighteen-year sentences. Mister was to serve a total of fifty-seven years' imprisonment.
At the Rule 37 hearing, Mister testified that on the day of his revocation hearing, his trial counsel, Naif Samuel Khoury, told him that he had " a twenty-year plea deal." Mister testified that he wanted to sign the plea agreement but that Khoury told him that he had to sign the plea agreement in front of the prosecutor. Mister testified, however, that when he arrived at the hearing, he " walked into a bench trial," and that he thought he " was going to take a plea bargain."
Mister testified that he had previously received a plea offer of thirty years and that he had rejected it. Mister further testified that he also received another plea offer for twenty-five years. Mister testified that he wanted a twenty-year plea agreement, and Khoury told him that the State would not make such an offer, but on
the day of the hearing, Khoury told him he had a twenty-year plea offer, and Mister wanted to accept it.
Mister further testified that his maximum sentencing exposure was never explained to him. Mister testified that when he received a letter from the State offering a thirty-year plea, the letter stated that his maximum exposure was 117 years. On cross-examination, Mister testified that Khoury had brought the letter over to him but did not explain to him that his exposure was 117 years. Mister testified that when he returned to prison, Khoury sent him a paper that Khoury had received from the State that set out how the 117-year sentencing exposure was calculated, but that Khoury had never explained it to him. During questioning by the court, Mister admitted that he knew about the 117-year sentencing exposure prior to trial ...