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Flemons v. State

Supreme Court of Arkansas

September 22, 2016



          Aaron Anthony Flemons, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.

          PER CURIAM

         Appellant 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 therefore moot.

         Flemons's 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.

         Flemons's 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).

         This 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.

         Both 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.

         Counsel 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.

         A 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).

         In his 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.

         Before 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.

         Flemons 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.

         Flemons 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 ...

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