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Savage v. State

Supreme Court of Arkansas

May 14, 2015

JERRY DEWAYNE SAVAGE, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

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[Copyrighted Material Omitted]

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NO. 02CR-11-40. HONORABLE DON GLOVER, JUDGE.

OPINION

Page 329

PRO SE APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT

PER CURIAM

In 2012, appellant Jerry Dewayne Savage was convicted of three counts of second-degree sexual assault and sentenced as a habitual offender to an aggregate term of 720 months' imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed. Savage v. State, 2013 Ark.App. 133. Appellant filed in the trial court a timely petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2014), and the trial court denied the petition without a hearing. Appellant lodged his appeal of the order in this court, and we affirm the trial court's denial of postconviction relief.

Under our general standard of review for an order that grants or denies postconviction relief, this court will not reverse the trial court's decision unless the trial court's findings are clearly erroneous. See Decay v. State, 2014 Ark. 387, 441 S.W.3d 899. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing

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the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id.

In his petition, appellant raised ten claims as grounds for relief. His ten points on appeal largely reassert the same claims. Appellant's first seven points for reversal are claims of ineffective assistance of counsel, and the first two points allege error in the trial court's finding that trial counsel was not ineffective for failing to investigate or call certain witnesses concerning appellant's mental condition.

On review of claims of ineffective assistance of trial counsel, this court follows the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 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. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895. 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." Sherman v. State, 2014 Ark. 474, 448 S.W.3d 704 (per curiam) (quoting Strickland, 466 U.S. at 686). In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883.

To satisfy the first prong of the Strickland test, the petitioner must show that counsel's performance was deficient. Decay, 2014 Ark. 387, 441 S.W.3d 899. To meet this requirement, a postconviction petitioner 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. Anderson v. State, 2015 Ark. 18, 454 S.W.3d 212 (per curiam). There is a strong presumption that trial counsel's conduct falls within the wide range of reasonable 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 ...


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