FROM THE CLARK COUNTY CIRCUIT COURT [NO. 10CR-17-70]
HONORABLE GREGORY L. VARDAMAN, CIRCUIT JUDGE.
Davis, pro se appellant.
Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't
Att'y Gen., for appellee.
MARK KLAPPENBACH, JUDGE.
November 29, 2017, appellant Larry David Davis appeared
before the Clark County Circuit Court to enter a negotiated
plea of no contest to the crimes of commercial burglary,
theft of property, and breaking or entering, as charged in
circuit court case number CR-17-70. The State had accused
Davis of breaking into the office of the Southfork Truck Stop
in Clark County and stealing money on April 4, 2017. At the
conclusion of the plea hearing, the trial court sentenced
Davis, as a habitual offender, to concurrent prison terms for
a total of thirty years to be served in the Arkansas
Department of Correction. A sentencing order was filed to
memorialize the plea and sentencing. Davis filed a petition
for postconviction relief in case number CR-17-70 pursuant to
Arkansas Rule of Criminal Procedure 37. The circuit court
entered an order denying Davis's petition without
conducting an evidentiary hearing. Davis filed a timely
notice of appeal from that order. We affirm.
reviewing the trial court's ruling on a Rule 37.1
petition, the appellant is limited to the scope and nature of
the arguments that he made below that were considered by the
trial court in rendering its ruling. Pedraza v.
State, 2016 Ark. 85, 485 S.W.3d 686. We do not address
new arguments raised for the first time on appeal, nor do we
consider factual substantiation added to bolster the
allegations made below. Thornton v. State, 2014 Ark.
113; Bridgeman v. State, 2017 Ark.App. 321, 525
not reverse the denial of postconviction relief unless the
circuit court's findings are clearly erroneous.
Johnson v. State, 2018 Ark. 6, at 2, 534 S.W.3d 143,
146. A finding is clearly erroneous when the appellate court,
after reviewing the entire evidence, is left with the
definite and firm conviction that the circuit court made a
mistake. Id. The trial court has discretion pursuant
to Rule 37.3(a) to decide whether the files or records are
sufficient to sustain the court's findings without a
hearing. Wood v. State, 2015 Ark. 477, 478 S.W.3d
194. Davis does not argue on appeal that the circuit
court's decision not to hold an evidentiary hearing on
his postconviction petition was in error.
benchmark for judging a claim of ineffective assistance of
counsel must be 'whether counsel's conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result.' Strickland [v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]." Mancia
v. State, 2015 Ark. 115, at 4, 459 S.W.3d 259, 264
(citing Henington v. State, 2012 Ark. 181, at 3-4,
403 S.W.3d 55, 58). Pursuant to Strickland, we
assess the effectiveness of counsel under a two-prong
standard. First, a petitioner raising a claim of ineffective
assistance of counsel must show that his counsel's
performance fell below an objective standard of
reasonableness. Mancia, 2015 Ark. 115, at 4, 459
S.W.3d at 264. A court must indulge in a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance. Osburn v. State,
2018 Ark.App. 97, 538 S.W.3d 258. Second, the petitioner must
show that counsel's deficient performance so prejudiced
petitioner's defense that he was deprived of a fair
trial. Id. The petitioner must show there is a
reasonable probability that, but for counsel's errors,
the fact-finder would have had a reasonable doubt respecting
guilt, i.e., the decision reached would have been different
absent the errors. Id. A reasonable probability is a
probability sufficient to undermine confidence in the outcome
of the trial. Id. Unless a petitioner makes both
showings, it cannot be said that the conviction resulted from
a breakdown in the adversarial process that renders the
result unreliable. Id. Additionally, conclusory
statements that counsel was ineffective cannot be the basis
for postconviction relief. Id.
Strickland standard applies to allegations of
ineffective assistance of counsel pertaining to possible
prejudice in guilty-plea and sentencing proceedings.
Mancia, 2015 Ark. 115, at 5, 459 S.W.3d at 264.
There is no distinction between guilty pleas and pleas of no
contest for purposes of Rule 37.1. See Seaton v.
State, 324 Ark. 236, 920 S.W.2d 13 (1996); Harris v.
State, 2017 Ark.App. 381, 526 S.W.3d 43. To establish
prejudice and prove that he or she was deprived of a fair
trial due to ineffective assistance of counsel, a petitioner
who has pled guilty must demonstrate a reasonable probability
that, but for counsel's errors, the petitioner would not
have so pled and would have insisted on going to trial.
Jones v. State, 2015 Ark. 119, at 5. Further,
"on appeal from the denial of a Rule 37 petition
following pleas of guilty there are only two issues for
review-one, whether the plea of guilty was intelligently and
voluntarily entered, [and] two, were the pleas made on the
advice of competent counsel." Mancia, 2015 Ark.
115, at 11, 459 S.W.3d at 267.
argued in his Rule 37 petition that he was arrested without a
valid warrant; that he was deprived of a preliminary or
omnibus hearing; that Clark County has a corrupt and crooked
judicial system that framed him for these alleged crimes;
that he was forced or tricked into entering this plea; and
that his privately retained attorney did not represent his
interests but was instead assisting the State in acquiring
plea hearing, the trial court went over the written plea
statement and the written negotiated plea agreement with
Davis. Both documents were filed of record and bear the
signatures of Davis and his attorney. Davis was advised by
the court of the crimes with which he had been charged and
the range of possible punishments for each crime. Davis
affirmed that he understood that he was pleading no contest,
acknowledged that he was waiving his right to a trial and to
appeal, and acknowledged the possible range of sentences.
Davis was asked if he had discussed this case completely with
his attorney and whether he was satisfied with his
attorney's services, and Davis said yes. Davis said that
he had not been threatened, coerced, or pressured into
entering a plea, nor had anyone promised him anything other
than what his attorney had negotiated for him. Davis
acknowledged that the circuit court did not have to follow
the recommended sentence. When asked if he had "any
doubts about your plea," Davis said no. He affirmed that
he was not under the influence of any drugs or intoxicants,
and he affirmed that he had a high school education and could
read. The circuit court asked whether it could rely on the
affidavits for arrest as the factual basis for what he did to
commit the crimes, and Davis said yes. Davis's attorney
recited that the agreement with the prosecutor was that Davis
would be sentenced effectively to a thirty-year prison term
by running the sentences concurrently, and Davis affirmed
that this was what he expected.
the plea hearing, Davis never asserted dissatisfaction or
distrust regarding any acts or omissions of his privately
retained attorney, and he has failed to offer anything other
than bare assertions that his counsel was working against him
in getting him to enter a plea. In the absence of an actual
conflict, a petitioner alleging that counsel's
performance was deficient due to another form of conflict
must demonstrate a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different. Id. A bare
contention that counsel had a conflict of interest is
insufficient to establish the existence of an actual conflict
of interest, which generally requires a showing that counsel
was actively representing the conflicting interests of third
parties. Stover v. State, 2016 Ark. 167, 489 S.W.3d
674. Davis has failed to make such a demonstration.
on the transcript of the plea hearing, we hold that the
circuit court did not clearly err in denying Davis's
postconviction petition for relief. Davis stated that he was
not forced or threatened to enter into the plea agreement;
Davis expressed satisfaction with his private attorney's
representation; and Davis agreed to the exact sentence that
he received. Nothing in the transcript of the plea hearing
demonstrates that Davis felt threatened or forced by his
counsel, or any other party, to plead guilty. To the
contrary, both the transcript of the plea hearing and
Davis's acknowledged and signed plea statement confirm
that he was not threatened or forced into pleading guilty.
See Osburn v. State, 2018 Ark.App. 97, 538 S.W.3d
258. Davis failed to prove that he was deprived of a fair
trial due to ineffective assistance of counsel in connection
with his no contest plea. Moreover, Davis has not alleged or
established that he would have insisted on going to trial but
for his attorney's errors. Therefore, we hold that Davis
has failed to meet the Strickland standard, and we
affirm the circuit court on this point.
remaining arguments are that he was arrested without a valid
warrant; that he was deprived of a preliminary or omnibus
hearing; and that Clark County has a corrupt and crooked
judicial system ...