FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CR-10-83,
35CR-10-602, 35CR-11-423, 35CR-12-346] HONORABLE JODI RAINES
Law Firm, by: William O. "Bill" James, Jr., and
Michael Kiel Kaiser, for appellant.
Rutledge, Att'y Gen., by: Rebecca Kane, Ass't
Att'y Gen., for appellee.
A. WOMACK, Associate Justice.
Beverage appeals from the Jefferson County Circuit
Court's order denying his petition for postconviction
relief due to ineffective assistance of counsel under
Arkansas Rule of Criminal Procedure 37.1 (2015). He filed his
petition for relief after pleading guilty to charges from
several different cases including first-degree murder,
aggravated robbery, first-degree escape, second-degree
battery, and theft of property. Beverage argues that, because
his counsel's failure to request a competency hearing was
both deficient and prejudicial, the circuit court erred in
denying his petition. For the reasons set out below, we
affirm the circuit court's denial of Beverage's
Facts and Procedural History
and two other inmates escaped from a juvenile detention
center in January 2010. During the escape, Beverage assaulted
a guard and caused the officer's fatal heart attack.
Beverage also assaulted additional employees and stole a
vehicle in connection with the escape. The remainder of the
charges stem from attacks on corrections officers while
Beverage was in custody.
trial counsel filed an initial motion for mental evaluation
after Beverage had been charged. The circuit court granted
the motion. Dr. William Cochran evaluated Beverage and
determined that he was competent to stand trial. Upon
receiving that report, Beverage's counsel filed a motion
for a supplementary forensic evaluation. The circuit court
granted that motion as well. Ron Faupel, a psychologist, also
concluded that Beverage was fit to stand trial. Two months
later, Dr. Jill Brush-Strode reached the same determination;
Beverage failed Dr. Brush-Strode's competency test, but
she concluded this was due to his feigning a lack of
understanding. Beverage's counsel retained Dr. Albert
Kittrell to testify about Beverage's chances for
rehabilitation. Dr. Kittrell did not conduct his own
evaluation of Beverage's fitness for trial, but he stated
that he agreed with the prior evaluators' reports.
pleaded guilty on September 7, 2012, and was sentenced to 600
months' imprisonment. He filed his motion for
postconviction relief on several grounds, including the
instant claim of ineffective assistance of counsel due to his
counsel's failure to request a competency hearing. The
circuit court denied the petition, and this court reversed
and remanded to the circuit court to conduct an evidentiary
hearing in light of a gap in the record. In addition to
resolving that issue on remand, the circuit court heard
testimony from Beverage's mother, who asserted that she
had given trial counsel a cache of medical documents that he
did not review.
circuit court again denied relief on Beverage's petition.
It explained that, in light of the independent judgment of
three medical professionals and the agreement of
Beverage's own witness that he was competent to stand
trial, his trial counsel made a reasonable decision not to
pursue the competency question further, and that decision did
not prejudice Beverage.
review circuit court decisions on Rule 37 petitions for clear
error. Adkins v. State, 2015 Ark. 336, at 1, 469
S.W.3d 790, 794 (per curiam). A finding is clearly erroneous
when, although there is evidence to support it, the appellate
court, after reviewing the entirety of the evidence, is left
with the definite and firm conviction that a mistake has been
committed. Id. This court has adopted the United
States Supreme Court's test from Strickland v.
Washington, 466 U.S. 668 (1984), to determine whether or
not counsel was ineffective. Taylor v. State, 2013
Ark. 146, at 5, 427 S.W.3d 29, 32. The Strickland
test requires both (1) that the petitioner's
counsel's performance was deficient and (2) that the
petitioner was prejudiced by that deficient performance.
Strain v. State, 2012 Ark. 42, at 2, 394 S.W.3d 294,
297 (per curiam).
arguments on appeal all concern his trial counsel's
failure to request a competency hearing. In order to show
that trial counsel's failure to request a competency
hearing was deficient, Beverage must point to errors that are
outside "the wide range of reasonable professional
assistance." See, e.g., Russell v.
State, 2016 Ark. 190, at 2, 490 S.W.3d 654, 658. In
order to satisfy the second prong of Strickland,
that he was prejudiced, Beverage must demonstrate that there
was a reasonable probability he would have been found
incompetent to plead ...