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Harris v. State

Court of Appeals of Arkansas, Division III

February 7, 2018

TYROME HARRIS, SR. APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO. 60CR-14-3398] HONORABLE LEON JOHNSON, JUDGE

          Tyrome Harris, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Ashely Priest, Ass't Att'y Gen., for appellee.

          DAVID M. GLOVER, JUDGE.

         Tyrome Harris, Sr., appeals pro se from the trial court's denial of his petition for postconviction relief. We earlier remanded the case to the trial court for supplementation of the record to include the portions the court specifically relied upon in denying the Rule 37 petition. Harris v. State, 2017 Ark.App. 464. The record has now been supplemented, and we are able to address the merits of Tyrome's appeal. We affirm the denial of postconviction relief.

         During a hearing on February 8, 2016, Tyrome entered a negotiated guilty plea to the offense of first-degree battery in case no. CR-2014-3398, and in exchange, the child-enhancement and habitual-offender allegations were nolle prossed in another case (CR-2014-2754). The plea statement signed by Tyrome on February 8, 2016, included a provision that explained he could receive a total sentence from five to twenty years in the state penitentiary and/or a fine of up to $15, 000.

         On March 7, 2016, Tyrome was sentenced to fifteen years in the Arkansas Department of Correction, with an additional five years' suspended imposition of sentence. During the sentencing hearing, in Tyrome's presence, his counsel stated in part:

Judge, we entered a plea of guilty to battery first degree with - - with the habitual dropped. The range is 5 to 20. The main point I want to make to the Court is, based on his prior record, any sentence the Court imposes today, he will have to serve 100 percent. So, whatever the sentence is - - and I'm asking the Court - - I told the Defendant I would ask the Court to consider a five-year sentence. He's going to have to serve day-for-day five years or any sentence the Court does impose.
. . . .
And I'm asking the Court to show leniency. I'm asking the Court to consider a five-year sentence of which he will have to serve day-for-day.

         There is nothing in the record to indicate that Tyrome expressed any concern or surprise about his counsel's comments or that he conveyed to the court his disagreement that serving 100 percent of any sentence imposed was contrary to the negotiated plea.

         On April 22, 2016, Tyrome filed his Rule 37 petition for postconviction relief. He alleged four bases to support his contention that his counsel was ineffective: 1) counsel had a conflict of interest with the alleged victim, 2) the plea agreement was for no enhancements or habitual offender, 3) jail-time credit was incorrect, and 4) counsel failed to advise him that he would be required to serve 100 percent of his sentence because of a prior felony conviction. In its order, the trial court denied the petition with no hearing, [1]finding no basis for postconviction relief on any of the grounds alleged by Tyrome in his petition. This pro se appeal followed in which Tyrome contends the trial court "abused its discretion" when it found trial counsel was effective. We find no error.

         As mentioned previously, in his Rule 37 petition, Tyrome alleged four bases in support of his contention that his trial counsel was ineffective. In this appeal, he has abandoned all but one of those bases. He no longer pursues his arguments that 1) counsel had a conflict of interest with the alleged victim, 2) the plea agreement was for no enhancements or habitual offender, and 3) his jail-time credit was incorrect. However, he does still maintain that his counsel was ineffective for allegedly failing to advise Tyrome that he would be required to serve 100 percent of his sentence because of a prior felony conviction, which has been his major contention throughout. In addition, Tyrome has added some constitutional arguments in his appeal to our court that were not raised in his Rule 37 petition-arguments based on the Sixth, Eighth, and Fourteenth Amendments involving due process and cruel and unusual punishment. Because Tyrome has abandoned all but one of the arguments he pursued in his Rule 37 petition (and because the constitutional arguments he raises in this appeal were not presented to the trial court and therefore were not properly preserved), we address only Tyrome's argument alleging ineffective assistance of counsel for failure to advise him that he would have to serve 100 percent of his sentence.

         In rejecting the "failure-to-advise" argument below, the trial court ...


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