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Mercouri v. State

Court of Appeals of Arkansas, Division II

January 31, 2018



          Craig Lambert, for appellant.

          Leslie Rutledge, Att'y Gen., by: Jason Michael Johnson, Ass't Att'y Gen., for appellee.


         Appellant Michael Mercouri appeals after the Pulaski County Circuit Court entered an order denying his petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1. For reversal, he contends that the circuit court erred because trial counsel was constitutionally ineffective (1) for failing to present a defense; (2) for failing to present evidence sufficient to call for a jury instruction on a lesser included offense; (3) for failing to seek the removal of a juror for cause; and (4) because appellate counsel was ineffective on Mercouri's behalf in his direct appeal.[1] We affirm.

         A. Relevant History

         The supreme court explained the incident that led to this charge in Mercouri v. State, 2016 Ark. 37, at 1-2, 480 S.W.3d 864, 865.

In April 2013, Kelvin Perry, the general manager of Aaron's in North Little Rock, was leaving work for lunch and to make a deposit at the bank. As he was walking through the Aaron's parking lot, he heard someone yell his name. Perry saw Mercouri, a former temporary employee, sitting in his vehicle. Perry recognized Mercouri and walked over to him. Mercouri inquired why Perry had not asked him to work lately. Perry responded that he did not need any additional help. Mercouri then reached down, pulled out a gun, and placed it on his lap. Perry "didn't think anything of it" until Mercouri grabbed him by the sleeve of his jacket, tried to pull him through the car window, and said "[G]ive me your money." Mercouri grew angry and pointed the gun toward Perry when Perry responded that he did not have any money. Mercouri ordered Perry to get in the back seat of the vehicle. Perry opened the back door of the vehicle but, instead of getting in, he suddenly ran across the street. Mercouri immediately left the scene, and Perry called the police.

         A Pulaski County jury convicted Mercouri of aggravated robbery and sentenced him to ten years' imprisonment in the Arkansas Department of Correction (ADC). On appeal, he contended sufficient evidence did not support the conviction. Our supreme court affirmed without reaching the merits because appellate counsel's specific argument was not preserved. Additionally, the court affirmed the denial of his motion to set aside his guilty verdict.

         On April 22, 2016, Mercouri filed a properly verified petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. On December 14, 2016, without holding an evidentiary hearing, the circuit court denied Mercouri's petition in an eleven-page order. The circuit court denied relief on his first claim that counsel was ineffective for failing to investigate the case and present a coherent defense, stating that the vague allegation of general ineffectiveness does not offer specifics that could be analyzed under Strickland v. Washington, 466 U.S. 668 (1994)'s two prongs. The court denied relief on Mercouri's second claim that counsel was ineffective for failing to present evidence sufficient to warrant a jury instruction on the lesser-included offense of robbery. The court explained that Mercouri offered no other theoretical way that his attorney could have created a rational inference that there was no gun other than his own testimony; when Mercouri was asked directly if he wanted to testify, he responded that he did not. The court denied relief on his third claim that a juror-who expressed reservations during voir dire about a defendant who did not testify on his own behalf-should have been excused for cause. The court explained that although she (the juror) initially indicated she might have reservations, counsel pressed her further, and she stated on the record that she could be fair and afford the defendant the presumption of innocence and the right to remain silent. The court denied relief on Mercouri's final claim that his appellate counsel was ineffective in his direct appeal. Mercouri argued his counsel abandoned any and all other potentially meritorious issues and instead presented an argument "that was clearly not preserved for appeal." The court stated that Mercouri's speculation that there were other issues that could have been raised on appeal might be correct, but without identifying them specifically, the court could not apply the case law to them.

         This timely appeal followed.

         B. Standard of Review

         We do not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous. Vaughn v. State, 2017 Ark.App. 241, at 7, 519 S.W.3d 717, 721. 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. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Id.

         Our standard of review also requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984). Vaughn, 2017 Ark.App. 241, at 7, 519 S.W.3d at 721. In asserting ineffective assistance of counsel under Strickland, the petitioner must first demonstrate that counsel's performance was deficient. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Id. The reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel that when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.

         Second, the petitioner must show that the deficient performance prejudiced the defense, which requires a demonstration that counsel's errors were so serious as to deprive the petitioner of a fair trial. Vaughn, supra. This requires the petitioner to show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.

         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. Id. We also recognize that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Anderson v. State, 2011 Ark. 488, at 3-4, 385 S.W.3d 783, 787 (quoting Strickland, 466 U.S. at 697).

         If the circuit court determines that the petitioner is entitled to no relief based on the petition, files, and records, then the petitioner is not entitled to an evidentiary hearing. Ark. R. Crim. P. 37.3(a). In such cases, the circuit court should provide sufficient written findings of fact to illustrate that the petitioner's claims are meritless. Boyd v. State, 2017 Ark.App. 592, at 11-12, ___ S.W.3d ___, ___. Our review indicates that the petition, files, and records conclusively show that Mercouri is not entitled to postconviction relief. As such, we hold that the circuit court was not obligated to hold an evidentiary hearing before denying Mercouri's petition as wholly without merit.

         C. Issues on Appeal

         As a preliminary matter, we first address Mercouri's submission that this case should be governed by United States v. Cronic, 466 U.S. 648 (1984), rather than Strickland. In Cronic, the Supreme Court held, "Only when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel's actual performance at trial." Id. at 667. Mercouri only generally asserts that Cronic should apply and fails to establish what "surrounding circumstances" justify a presumption of ineffectiveness. We decline to follow this reasoning and evaluate this case under Strickland.

         D. Coherent Defense

         We now turn to Mercouri's first point on appeal that trial counsel had no coherent defense strategy and that "counsel basically did nothing." To support his claim, Mercouri relies on the following dialogue that took place after his directed verdict motion had been denied and after he requested a jury instruction on the lesser-included offense of robbery:

The Court: And what, what defense are you putting forth for Mr. Mercouri? That this event didn't happen at all or that it happened, and it's just a misunderstanding?
Mr. Littlejohn: Well, it was a --The
The Court: I'm not clear.
Mr. Littlejohn: --- general denial, potentially a misunderstanding, and also we were trying to get back what was ...

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