FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [NO.
60CR-13-1755] HONORABLE HERBERT WRIGHT, JUDGE
Lambert, for appellant.
Rutledge, Att'y Gen., by: Jason Michael Johnson,
Ass't Att'y Gen., for appellee.
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. We affirm.
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.
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.
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
timely appeal followed.
Standard of Review
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.
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.
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
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).
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.
Issues on Appeal
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
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