APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FT. SMITH
DISTRICT; PRO SE MOTIONS TO FILE BELATED REPLY BRIEF, TO FILE
SUPPLEMENTAL ABSTRACT, AND FOR POLYGRAPH EXAMINATION AND STAY
[NOS. 66CR-00-827, 66CR-08-1404] HONORABLE STEPHEN TABOR,
Anthony Flemons, pro se appellant.
Rutledge, Att'y Gen., by: Karen Virginia Wallace,
Ass't Att'y Gen., for appellee.
Aaron Anthony Flemons appeals the denial of his pro se
petition for postconviction relief under Arkansas Rule of
Criminal Procedure 37.1 (2015). Flemons tendered a reply
brief to this court after the deadline for filing a reply
brief had passed. He then filed motions that seek leave to
file a belated reply brief, leave to file a supplemental
abstract, and an order for polygraph examinations and to stay
the proceedings. Flemons also tendered with his motions a
reply brief in which he included his proposed supplemental
abstract, and he seeks to clarify the arguments made in the
first point that he raises on appeal. In Flemons's motion
to stay the proceedings and to have polygraph examinations
conducted, he also seeks to further support the same point on
appeal. As discussed below, Flemons's arguments in his
petition and the record on appeal are sufficiently clear for
our determination of the issues. We accordingly affirm the
denial of postconviction relief, and the motions are
Rule 37.1 petition alleged that he received ineffective
assistance of counsel in the proceeding for revocation of a
suspended sentence. Flemons had entered nolo contendere pleas
in two cases. He was sentenced to 72 months' imprisonment
and 120 months' suspended imposition of sentence on a
charge of possession of cocaine with intent to deliver in
66CR-00-827 and to 12 months' imprisonment and 60
months' suspended imposition of sentence on a
third-degree domestic-battery charge in 66CR-08-1404. The
challenged judgment imposed an aggregate sentence of 360
months' imprisonment in these two criminal cases in
conjunction with the court's granting a petition to
revoke (PTR) the suspended sentences.
attorney on appeal of the revocation order filed a no-merit
brief, and the Arkansas Court of Appeals affirmed the
judgment and granted the appellate attorney's motion to
withdraw. Flemons v. State, 2014 Ark.App. 131.
Flemons filed a timely petition for postconviction relief,
and, with the trial court's permission, he amended the
petition. The trial court held an evidentiary hearing on the
amended petition and entered an order finding that counsel
was not ineffective and dismissing the petition. Flemons now
raises two points on appeal. We treat any arguments made
below but not raised in the appeal as abandoned. State v.
Grisby, 370 Ark. 66, 257 S.W.3d 104 (2007).
court will not reverse a trial court's decision granting
or denying postconviction relief unless it is clearly
erroneous. Houghton v. State, 2015 Ark. 252, 464
S.W.3d 922. 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 committed. Turner
v. State, 2016 Ark. 96, 486 S.W.3d 757.
points on appeal concern Flemons's allegations that trial
counsel was ineffective. Our standard for
ineffective-assistance-of-counsel claims is the two-prong
analysis set forth in Strickland v. Washington, 466
U.S. 668 (1984). Rasul v. State, 2015 Ark. 118, 458
S.W.3d 722. 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. Mister v. State, 2014 Ark.
446. Unless a petitioner makes both showings, the allegations
do not meet the benchmark on review for granting relief on a
claim of ineffective assistance. Houghton, 2015 Ark.
252, 464 S.W.3d 922.
is presumed effective, and allegations without factual
substantiation are insufficient to overcome that presumption.
Henington v. State, 2012 Ark. 181, 403 S.W.3d 55. A
petitioner claiming deficient performance must show that
counsel's representation fell below an objective standard
of reasonableness, and this court must indulge in a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance. Id. A
petitioner has the burden of overcoming the presumption that
counsel is effective by identifying specific acts and
omissions that, when viewed from counsel's perspective at
the time of trial, could not have been the result of
reasonable professional judgment. Id.
claimant must show that there is a reasonable probability
that the fact-finder's decision would have been different
absent counsel's alleged errors in order to meet the
second prong of the test. Sales v. State, 2014 Ark.
384, 441 S.W.3d 883. A reasonable probability is a
probability sufficient to undermine confidence in the outcome
of the trial. Id. In assessing prejudice, courts
"must consider the totality of the evidence before the
judge or jury." Rasul, 2015 Ark. 118, at 7, 458
S.W.3d at 727 (quoting Strickland, 466 U.S. at 695).
first point on appeal, Flemons asserts that trial counsel was
ineffective in failing to adequately investigate a plea
offer, in that she provided incorrect information concerning
his parole eligibility and that he would have accepted the
plea deal as offered if counsel had provided accurate
information. The evidence at the hearing on the Rule 37.1
petition established that a plea offer had been made by the
deputy prosecutor. That evidence also established that, under
the terms of the proposed agreement, if the plea deal was
accepted, the PTR would have been withdrawn.
the hearing on the PTR, the prosecution had submitted a plea
offer that covered the PTR and the pending charges that had
prompted the PTR. Specifically, the offer was that the
prosecution would recommend 25-year sentences on Y-felony
drug-delivery charges in three cases, 6-year flat sentences
on domestic-battery charges in two cases, and a 6-year flat
sentence on a charge of leaving the scene of an injury
accident and endangering the welfare of a minor, with all
sentences to be concurrent. In addition, the prosecution
would withdraw the PTR, provided that Flemons entered pleas
to all of these new charges.
alleges that counsel incorrectly advised him that the battery
charges would trigger a statutory requirement that he serve
the full time on the recommended sentences without
eligibility for parole, that is, that he would not be
eligible for parole during the aggregate 25-year term
recommended. He contends that he would have accepted the plea
offer if he had been correctly advised and that the outcome
of the PTR proceedings would have been different, in that the
PTR would have been withdrawn. There was evidence at the Rule
37 hearing that Flemons had declined the plea offer and
countered with a proposal that he serve 15 years on a
conspiracy charge, with the battery charges nolle prossed.
There was also evidence that Flemons would have been willing
to accept an offer for the full 25-year sentence
recommendation, provided the battery charges were dropped.
However, there was testimony that the prosecution was
unwilling to drop the battery charges and, as the deputy
prosecutor put it, she would only accept a global agreement
on all charges.
contends that he was unwilling to accept the plea deal
because he mistakenly believed that a plea to the battery
charges would cause him to be ineligible for parole, and he
asserts that trial counsel should have advised him that the
statute's application would not be triggered if he
entered a plea to the charges. In ...