APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO.
26CR-10-248] HONORABLE JOHN HOMER WRIGHT, JUDGE AFFIRMED.
Jonathan Berks, pro se appellant.
Rutledge, Att'y Gen., by: Kent G. Holt, Ass't
Att'y Gen., for appellee.
2013, the Arkansas Court of Appeals affirmed a judgment
reflecting appellant Jonathan Berks's convictions on
charges of second-degree murder and aggravated robbery and
his consecutive sentences of thirty years' imprisonment
for each of the two charges. Berks v. State, 2013
Ark.App. 203, 427 S.W.3d 98. After the mandate issued, Berks
filed in the trial court a timely, verified petition under
Arkansas Rule of Criminal Procedure 37.1 (2015) that
challenged the same judgment. The trial court granted
Berks's motion to file an amended and overlength
petition, and later denied and dismissed the petition. Berks
filed a request that the order be modified to include omitted
issues, and the trial court also denied that motion, finding
that the order had adequately addressed the issues in
question. This court granted Berks's motion for belated
appeal of the order on the basis that the trial court had not
provided Berks with prompt notice of the order denying the
motion for a ruling on omitted issues. Berks v.
State, 2015 Ark. 234, 463 S.W.3d 289 (per curiam). That
appeal is now before us, and we affirm.
raises three points on appeal, as follows: (1) that the trial
court erred in finding that Berks's claim that counsel
was ineffective for counseling him to reject a plea offer was
outside the purview of a Rule 37.1 petition; (2) that the
trial court misconstrued his claim concerning evidence of
mental defect and disease; and (3) that the trial court's
order was inadequate under Arkansas Rule of Criminal
Procedure 37.3(a) in that it did not specify the parts of the
files or records relied upon for the court's findings. We
address the adequacy of the order first.
Arkansas Rule of Criminal Procedure 37.3, in order to
summarily deny a Rule 37.1 petition without a hearing, the
trial court is required to make written findings of fact,
which specify any parts of the files or records that are
relied on to sustain the court's findings, and those
findings must conclusively show that the petitioner is
entitled to no relief. Beverage v. State, 2015 Ark.
112, 458 S.W.3d 243. This court affirms the denial of a Rule
37.1 petition notwithstanding the trial court's failure
to make sufficient findings under Rule 37.3(a) only in two
circumstances: (1) when it can be determined from the record
that the petition is wholly without merit, or (2) when the
allegations in the petition are such that it is conclusive on
the face of the petition that no relief is warranted.
Turner v. State, 2016 Ark. 96, 486 S.W.3d 757. It is
not, however, incumbent on this court to scour the record in
a Rule 37 appeal to determine if the petition is wholly
without merit. Id. The failure to make sufficient
written findings is reversible error. Sanders v.
State, 352 Ark. 16, 98 S.W.3d 35 (2003).
case, some confusion arose from the fact that the trial
court's order addressed all issues raised in the original
Rule 37.1 petition, and not just the two issues in the
amended petition. The amended petition had culled the vital
issues to only two of those claims originally raised, and the
trial court's order declining to modify the order
indicated that the order, while addressing these other issues
as well, fully addressed the two issues that were raised in
the amended petition. As discussed in depth below, the trial
court's findings concerning those two issues were either
adequate for our review or the allegations in the petition
were such that it was conclusive that no relief was
first point on appeal and his first claim in the amended Rule
37.1 petition, Berks alleges that counsel was ineffective for
counseling him to reject a plea offer. Berks asserts that the
trial court incorrectly found that this issue was not within
the purview of Rule 37 proceedings because the decision to
make such a recommendation was a strategic one. Although the
trial court did not identify a basis for its finding that the
decision was a strategic one, Berks's allegations in the
petition are such that it is conclusive no relief was
warranted on those allegations.
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, 2016 Ark. 96, 486 S.W.3d 757.
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
have a Sixth Amendment right to counsel, and that right
extends to the plea-bargaining process. Lafler v.
Cooper, 132 S.Ct. 1376 (2012). Where trial counsel's
performance is deficient in recommending that the defendant
reject a plea offer, the Strickland test is
satisfied where the claimant shows a reasonable probability
that, but for the defective performance, he and the trial
court would have accepted the guilty plea. Id.
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.
alleged in the petition that his attorney had brought him an
offer from the prosecution for a deal in which the robbery
charge was nolle prossed and the State recommended a
thirty-year sentence on the murder charge. Berks alleged
that he was facing potential sentences of life plus thirty
years if he went to trial and that he was willing to accept
the offer, but that counsel convinced him that "even if
convicted he would receive a sentence less than 30
years." Berks's claim was that he would have
accepted the plea offer and would not have rejected the offer
but for the faulty advice. To support his allegation of