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Berks v. State

Supreme Court of Arkansas

October 27, 2016

JONATHAN BERKS APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         PRO SE APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-10-248] HONORABLE JOHN HOMER WRIGHT, JUDGE AFFIRMED.

          Jonathan Berks, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.

          PER CURIAM.

         In 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.

         Berks 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.

         Under 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).

         In this 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 warranted.

         In his 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.

         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, 2016 Ark. 96, 486 S.W.3d 757.

         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.

         Defendants 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.

         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.

         Berks 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.[1] 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 ...


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