FROM THE GARLAND COUNTY CIRCUIT COURT [26CR-12-65] HONORABLE
JOHN HOMER WRIGHT, JUDGE
& Benca, by: Patrick J. Benca, for appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
JOSEPHINE LINKER HART, Associate Justice
Beavers filed in the circuit court a timely petition seeking
postconviction relief under Rule 37.1 of the Arkansas Rules
of Criminal Procedure. The circuit court denied the petition,
and Beavers appeals. On appeal, Beavers contends that his
trial counsel made erroneous statements to him regarding his
parole eligibility under a plea offer, which caused him to
reject the plea offer and instead stand for trial, where he
suffered a less favorable outcome. Because the circuit
court's findings were clearly erroneous, we reverse and
Lafler v. Cooper, ___U.S. ___, 132 S.Ct. 1376, 1384
(2012), the United States Supreme Court has stated as
Defendants have a Sixth Amendment right to counsel, a right
that extends to the plea-bargaining process. Frye,
ante, at 1386-1387, 132 S.Ct. 1399; see also
Padilla v. Kentucky, 559 U.S. ___, ___, 130 S.Ct. 1473,
1486, 176 L.Ed.2d 284 (2010); Hill, supra,
at 57, 106 S.Ct. 366. During plea negotiations defendants are
"entitled to the effective assistance of competent
counsel." McMann v. Richardson, 397 U.S. 759,
771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).
Lafler squarely holds that defendants have a Sixth
Amendment right to counsel, made applicable to this state by
the Fourteenth Amendment, which extends to the
two-part Strickland v. Washington[, 466 U.S. 668
(1984)] test applies here for claims based on ineffective
assistance of counsel. Lafler, ___ U.S. at ___, 132
S.Ct. at 1384. Under the performance prong of
Strickland, a defendant must show that counsel's
representation fell below an objective standard of
reasonableness. Id. at ___, 132 S.Ct. at 1384. To
establish prejudice, a defendant must show that but for the
ineffective advice of counsel there is a reasonable
probability that the plea offer would have been presented to
the court, that the court would have accepted its terms, and
that the conviction or sentence, or both, under the
offer's terms would have been less severe than under the
judgment and sentence that in fact were imposed. Id.
at ___, 132 S.Ct. at 1385.
not reverse the denial of postconviction relief unless the
circuit court's findings are clearly erroneous.
Montgomery v. State, 2014 Ark. 122, at 2. A finding
is clearly erroneous when, although there is evidence to
support it, the appellate court, after reviewing the entire
evidence, is left with the definite and firm conviction that
a mistake has been made. Id. In making a
determination on a claim of ineffective assistance of
counsel, this court considers the totality of the evidence.
minimum sentence for the rape charge that Beavers faced at
trial was 25 years, and 70 percent of the term of
imprisonment would have to be served to be eligible for
parole. Ark. Code Ann. § 5-14-103(a)(3)(A), (c)(2)
(Repl. 2013); Ark. Code Ann. § 16-93-618(a)(1)(D) (Supp.
2015). The case was originally set for trial on August 14,
2013. On that day, Beavers's defense counsel, Mark
Fraiser, informed the circuit court that the State had
offered to reduce the rape charge to second-degree sexual
assault and recommend a sentence of 20 years. We note that
under our parole statutes, Beavers would have been eligible
for parole for this offense after having served one-third of
the sentence with credit for meritorious good time, which
would translate into serving one-sixth of the time imposed if
he earned maximum good time. Ark. Code Ann. §
5-14-125(b)(1) (Supp. 2015); Ark. Code Ann. §
5-4-401(a)(3); Ark. Code Ann. § 16-93-614(c)(3)(A); Code
Ark. R. 154.00.1-1-4. Under the guidelines set forth by the
Arkansas Sentencing Commission on the determination of the
seriousness of the offense, this offense falls
"below" the line, resulting in a sentence of
one-third to one-sixth of the time imposed, while an offense
that is "above" the line requires serving one-half
to one-quarter of the time imposed. Ark. Code Ann. §
the scheduled trial, Fraiser stated to the court that he had
conveyed the plea offer to Beavers and his father and that
they had rejected the offer. When asked by the court, Fraiser
agreed that second-degree sexual assault was not a "70
percent offense." Fraiser stated, "It's a half
to a fourth, and it was explained to them regarding
that." The State asked, "Are you sure it's half
and a quarter? I think it might be a third and a sixth."
Fraiser noted that the crime was a Class B felony and stated,
"I think this is above the line." The court stated,
I think it's more likely it's above the line."
Fraiser then stated, "But even if it was a third and a
sixth-, " and the court interjected, stating, "Is
this correct, Mr. Beavers, you were-did discuss this with Mr.
Fraiser-and your father, and rejected the State's offer,
is that correct?" Beavers responded affirmatively.
trial was rescheduled for November 14, 2013. Prior to trial,
Fraiser informed the court that the State had previously made
an "offer of 20 years on a reduced charge." Fraiser
further stated that the offer and the parole-eligibility
applications had been discussed, and the offer was rejected.
The jury convicted Beavers, and he was sentenced to 25 years,
of which he would have to serve 70 percent of the term of
imprisonment to be eligible for parole.
filed a petition for postconviction relief claiming
ineffective assistance of counsel. At the hearing on the
petition, Beavers's father, Joel Beavers, testified that
Fraiser had discussed with him that his son would have to
serve 70 percent of a sentence on the rape charge and that
the minimum sentence was 25 years. Joel Beavers testified
that when Fraiser spoke to him about the plea offer, Fraiser
told him that the sentence would be 20 years. Joel Beavers
further testified that he understood that to mean that the
plea offer was also a 70 percent offense and that Fraiser did
not explain 70 percent offenses, "above" the line
offenses, or "below" the line offenses. Joel
Beavers agreed that he thought there was little difference
between serving 70 percent of a 25-year sentence and serving
70 percent of a 20-year sentence.
also testified at the hearing. He testified that it was his
understanding that the offer of 20 years differed only by
five years from the 25-year offer. Beavers further testified
that he did not know what was meant by an "above"
the line offense or a "below" the line offense. He
also testified that he did not know what was meant by
one-quarter or one-half. He further ...