MOTION FOR EXTENSION OF TIME TO FILE BRIEF; MOTION FOR
APPOINTMENT OF ATTORNEY [SEBASTIAN COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT, NO. 66CR-14-1014] HONORABLE STEPHEN TABOR,
JUDGE APPEAL DISMISSED; MOTIONS MOOT.
Cohen James Davis filed a pro se petition for postconviction
relief pursuant to Rule 37.1 (2015) of the Arkansas Rules of
Criminal Procedure, which was denied by the trial court.
Davis lodged this appeal, and has filed two motions in which
he seeks an extension of time to file his brief and also asks
this court to appoint appellate counsel. Because it is clear
that Davis cannot prevail on appeal, we dismiss the appeal,
and Davis's motions are moot.
2, 2015, Davis pleaded guilty to first-degree murder and rape
by forcible compulsion in connection with the death of his
two-year-old niece, Naomi, who, while in the care of Davis
was brought to the emergency room in critical condition.
Naomi subsequently died of a torn duodenum which, according
to the medical examiner, had occurred shortly before Naomi
arrived at the hospital. Furthermore, medical evidence
demonstrated that Naomi had sustained tears to her vaginal
area which were likewise determined by the medical examiner
as having been inflicted shortly before her arrival at the
sentencing order, filed on July 6, 2015, sentenced Davis to
240 months' imprisonment for rape and 360 months'
imprisonment for murder. The record demonstrates that on July
9, 2015, Davis filed a request to revoke his guilty plea,
which was denied by the trial court. Thereafter, Davis filed
a timely, verified Rule 37.1 petition on August 28, 2015,
alleging that his guilty plea was not voluntarily and
intelligently made but was the result of the ineffective
assistance of his counsel, Ernie Witt. In support of his
claim, Davis alleged that he was transported to the
courthouse under the mistaken belief that he was to appear in
court for a DHS hearing. Davis further alleged that upon arrival
at the courthouse he was informed by Witt that a good deal
had been reached whereby Davis would be sentenced to forty
years' imprisonment plus twenty years' imprisonment
for both charges. According to Davis, he initially refused
the offer but was told by Witt that if he pleaded guilty, DHS
would return his children to the custody of his wife. Witt
further stated: "you're a Christian man aren't
you? Do the right thing send your babies home."
further alleged that Witt threatened him as follows:
"Look at me when I speak to you . . . this is completely
out of character for you, I don't know what happened but
I do know the state is going to put you to death so choose
life." According to Davis, Witt ordered him to sign the
plea statement, and, when Davis asked what he should say in
court, Witt replied, "you won't say anything except
what the Judge asks and what I tell you." Davis asserted
that as a result of the pressure and threats attributed to
Witt, Davis was in shock and gave in because he was mentally
trial court appointed postconviction counsel and conducted an
evidentiary hearing. At that hearing, Witt testified that he
thoroughly reviewed the medical records as well as the
autopsy report and had hired co-counsel to assist in
reviewing the medical records. According to Witt, the
State's evidence strongly supported the charges filed
against Davis, and the medical records clearly supported the
rape charge. Witt asserted that he did not recall the exact
circumstances which culminated in Davis's decision to
plead guilty, but asserted that prior to the date of the
plea, Witt had visited Davis at the jail and thoroughly
reviewed the plea offer. Witt further testified that Davis
never expressed an unwillingness to enter a guilty plea, and
Witt emphatically denied telling Davis that his guilty plea
would result in DHS returning his children to the custody of
his wife or that Davis would face the death penalty if he did
not plead guilty.
trial court allowed the introduction of evidence consisting
of the testimony of Davis's mother, Patricia Green, and
the admission of portions of the medical records which Davis
had contended were relevant in that such evidence established
a possible defense of medical malpractice as the cause of
Naomi's injuries and death. Davis argued to the trial court
that the testimony and evidence demonstrated that Witt failed
to properly advise Davis of the existence of this allegedly
exculpatory evidence before pressuring Davis to plead guilty.
testified and reiterated the allegations set forth in his
postconviction petition which have been enumerated above. In
addition, Davis testified that Witt did not allow him access
to the medical records or the police reports connected with
the investigation of his case. However, Davis admitted that
Witt allowed him to review the autopsy report and the autopsy
photographs. Finally, Davis admitted that Witt had discussed
parole eligibility with him. In addition to the testimony and
medical evidence presented during the postconviction hearing,
the transcript of Davis's plea hearing was admitted into
evidence and considered by the trial court.
trial court denied relief primarily based on its credibility
findings. The court stated: "[t]he credibility of the
Petitioner, weighed against that of Mr. Witt is the greatest,
though not the sole factor in the Court's decision."
The court also concluded that Witt's testimony was
consistent with the other evidence before the court including
testimony presented during Davis's plea hearing.
Specifically, the trial court noted that Davis was advised of
the penalties with respect to the charged offenses and would
have known that the death penalty was not an option when he
pleaded guilty; that Davis advised the court that he had
reviewed the plea documents with Witt and stated that he had
no questions for the court; that Davis confirmed that he
understood his right to a jury trial, the right to confront
witnesses on his own behalf and acknowledged that he
understood he was waiving those rights; that Davis was able
to accurately relate to the court his plea agreement and
denied that his plea was the product of force, threats, or
coercion of any kind; and that Davis acknowledged the facts
to which he was pleading guilty The court also noted that
Davis admitted that Witt allowed him to call his mother on
the day of the plea, which belied Davis's contention that
Witt had been attempting to strong arm Davis into pleading
guilty. With respect to the testimony of Davis's mother
and the medical records presented in connection with her
testimony, the trial court concluded that only four pages of
the voluminous medical records had been introduced at the
hearing and the findings of the autopsy had not been
presented. The trial court further concluded that there was
nothing contained in those four pages establishing a possible
defense to the charges that had been overlooked by
court does not reverse a denial of postconviction relief
unless the trial court's findings are clearly erroneous.
Robinson v. State, 2016 Ark. 211, at 3-4, 492 S.W.3d
77, 79-80. A finding is clearly erroneous when, although
there is evidence to support it, after reviewing the entire
evidence, we are left with the definite and firm conviction
that a mistake has been committed. Id. This court
defers to the trial court's superior position to
ascertain witnesses' credibility, and the trier of fact
is free to believe all or part of any witness's testimony
and may resolve questions of conflicting testimony and
inconsistent evidence. Strom v. State, 348 Ark. 610,
616-17, 74 S.W.3d 233, 237(2002); see also Barber v.
State, 2014 Ark. 179, at 4 (per curiam); Smith v.
State, 2013 Ark. 166 at 4 (per curiam). Where the
testimony is conflicting, we do not pass upon the credibility
of the witnesses and have no right to disregard the testimony
of any witness after the finder of fact has given it full
credence, where it cannot be said with assurance that it was
inherently improbable, physically impossible, or so clearly
unbelievable that reasonable minds could not differ thereon.
Davenport v. State, 373 Ark. 71, 73, 281 S.W.3d 268,
effectiveness of counsel is assessed under the two-prong
standard set forth by the Supreme Court of the United States
in Strickland v. Washington, 466 U.S. 668 (1984):
that the performance of petitioner's counsel was
deficient, that is, made errors so serious that counsel was
not functioning as the counsel guaranteed by the Sixth
Amendment, and the petitioner was prejudiced by counsel's
performance. Robinson, 2016 Ark. 211, at 4, 492
S.W.3d at 80. Unless a petitioner makes both
Strickland showings, it cannot be said that the
conviction resulted from a breakdown in the adversarial
process that renders the result unreliable. Tornavacca v.
State, 2012 Ark. 224, at 16, 408 S.W.3d 727, 738.
the Strickland ineffectiveness test is applied to
situations involving the entry of a guilty plea, the question
is whether, but for counsel's unprofessional errors,
there is a reasonable probability that the petitioner would
not have pleaded guilty and would have insisted on going to
trial. Robinson, 2016 Ark. 211, at 4, 492 S.W.3d at
80. In discussing the Strickland standard, with
respect to allegations of ineffective assistance of counsel
when a guilty plea has been entered, the first half of the
standard requires that counsel's advice to plead guilty
must fall outside the range of competence demanded of
attorneys in criminal cases. Id. at 4, FN 1
(citing Tollett v. Henderson, 411 U.S. 258 (1973)).
Therefore, on appeal from the denial of a Rule 37.1 petition
following guilty pleas, there are only two issues for
review-one, whether the plea of guilty was intelligently and
voluntarily entered and, two, was the plea made on the advice
of competent counsel. Mancia v. State, 2015 Ark.
115, at 11, 459 S.W.3d 259, 267 (citing Branham v.
State, 292 Ark. 355, 356, 730 S.W.2d 226, 227 (1987)).
Witt's testimony that he had advised Davis to plead
guilty based on his professional assessment of the strength
of the State's evidence and that Davis voluntarily and
intelligently pleaded guilty was deemed to be more credible
than the contradictory testimony of Davis. This credibility
finding cannot be disregarded on appeal because, after a
review of the totality of the evidence, it cannot be said
that the trial court's credibility finding was inherently
improbable or clearly unbelievable. Davenport, 373
Ark. at 73, 281 S.W.3d at 270. Moreover, the trial court did
not clearly err when it rejected Davis's allegation that
his counsel's advice to plead guilty fell outside the
range of competence demanded of attorneys in criminal cases.
Robinson, 2016 Ark. 211, at 4, 492 S.W.3d at 80.
Because Davis failed to establish the first part of the
Strickland standard, there is no showing that his
conviction resulted from a breakdown in the adversarial
process that rendered his conviction unreliable.