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Harmon v. State

Court of Appeals of Arkansas, Division III

October 30, 2019



          Henry Harmon, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

          ROBERT J. GLADWIN, Judge

         Henry 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.

         I. Procedural History

         Harmon 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.

         Harmon 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 analysis:

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 Bashir.
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.

         II. Stand ...

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