HENRY A. HARMON APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO.
60CR-12-515] HONORABLE LEON JOHNSON, JUDGE
Harmon, pro se appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
J. GLADWIN, Judge
A. Harmon appeals the Pulaski County Circuit Court's
order denying his petition for postconviction relief pursuant
to Rule 37.1 of the Arkansas Rules of Criminal Procedure
(2018). Harmon argues in five points on appeal that his trial
counsel was ineffective and that the circuit court erred in
its rulings. We affirm.
was convicted in the Pulaski County Circuit Court of
first-degree murder, two counts of aggravated robbery, and
aggravated assault and was sentenced to a total of 105
years' imprisonment. He appealed, and this court affirmed
his conviction. See Harmon v. State, 2014 Ark.App.
70. Harmon filed a petition for review with the Arkansas
Supreme Court, which granted the petition, vacated this
court's opinion, reversed, and remanded to the circuit
court, holding that the circuit court had abused its
discretion by excluding DNA evidence. See Harmon v.
State, 2014 Ark. 391, 441 S.W.3d 891.
was tried again on December 8-9, 2015, but it ended in a
mistrial. On March 8, 2017, Harmon entered into a negotiated
plea in which he pled guilty to amended charges of
manslaughter and robbery and received consecutive sentences
of five years' and forty years' imprisonment,
respectively. He filed a timely pro se petition for
postconviction relief under Rule 37, arguing that he had
received ineffective assistance of counsel. After a hearing,
the circuit court filed an order on May 29, 2018, in which it
denied the Rule 37 petition. The circuit court stated in its
First, Harmon argues defense counsel, Tony Brasuell and Bobby
Digby were ineffective for their failure to pursue a viable
trial strategy. He alleges defense counsel failed to
challenge DNA results of Nakita Smith, and also failed to
challenge the credibility of state's witness, Rahim
Harmon believed Brasuell should have pursued the fact that
Smith's blood was found in the car and that she could
have committed the offense(s). At the April 26, 2018 hearing,
Brasuell testified that he discussed with Harmon additional
testing from the crime lab and that it could come with
certain consequences that would not be positive for his case.
Further, Brasuell testified that Smith's DNA in the car
would be of no consequence as it was a known fact that Smith
[had been] in the car. Harmon also wanted Brasuell to move to
suppress the photo identification of Rahim Bashir. Brasuell
informed Harmon this strategy would be more harmful than
helpful to his case as it could open the door to Harmon being
identified as the assailant of a robbery earlier the same
night. Both of Harmon's arguments fail as to trial
strategy as Brasuell illustrated reasonable professional
judgment in not wanting to open the door to facts that would
be more harmful than helpful to his case. Additionally,
Brasuell's strategy and tactics are not grounds for a
finding of ineffective assistance of counsel. Bowden
[v. State], 2015 Ark. 137[, 460 S.W.3d 769].
Second, Harmon argues he was not properly advised of the
length of time he would serve upon his acceptance of the
negotiated plea. Digby was co-counsel for Harmon; however, he
did not handle much of the trial preparation. Digby testified
that Harmon wanted to go to trial, but plea negotiation began
before the trial, and he entered a plea. On
cross-examination, Digby stated there was an issue with the
parole eligibility of the robbery. Digby testified that he
realized they misadvised Harmon of his parole eligibility.
Harmon was initially told that robbery carried a one-third,
one-sixth parole eligibility; however, robbery carries a
one-half, one-fourth parole eligibility. Digby expressed
Harmon was not happy with the change in parole eligibility,
but after they were given time to explain it, he understood
and did not want to withdraw his plea. Harmon expressly
stated his intent not to withdraw his plea on the record.
(Please see plea transcript p. 7-8). Furthermore, Digby
stated he discussed the plea statement fully with Harmon, and
Harmon initialed each portion of the plea statement. One of
which being, "No one made you any promises regarding
parole eligibility, earning of meritorious good time, early
release, or anything of that nature in order to get you to
enter this plea?"
Ms. Dorothy Harmon, mother of petitioner, testified that
Digby informed her that Harmon would be eligible for parole
in two and one-half (2.5) years to five years. This is a bare
assertion and not corroborated by any other testimony or
evidence. Thus, the court finds that Harmon has failed to
demonstrate a reasonable probability that, but for
counsel's errors he would not have pleaded guilty and
would have insisted on going to trial.
From this order, Harmon filed a timely notice of appeal, and
this appeal followed.