Beverage v. State , 2015 Ark. 112 ( 2015 )


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  •                                    Cite as 
    2015 Ark. 112
    
                    SUPREME COURT OF ARKANSAS
                                          No.   CR-13-389
    
    CHRISTOPHER BEVERAGE                             Opinion Delivered   March 19, 2015
                      APPELLANT
                                                     APPEAL FROM THE JEFFERSON
    V.                                               COUNTY CIRCUIT COURT
                                                     [NOS. CR-2010-83-2-5; CR-10-602-2-5;
                                                     CR-11-423-2-5; CR-12-346-2-5]
    STATE OF ARKANSAS
                                     APPELLEE        HONORABLE JODI RAINES DENNIS,
                                                     JUDGE
    
                                                     AFFIRMED IN PART; REVERSED
                                                     AND REMANDED IN PART.
    
    
                              PAUL E. DANIELSON, Associate Justice
    
    
           Appellant Christopher Beverage appeals from the order of the Jefferson County Circuit
    
    Court denying his petition for postconviction relief pursuant to Arkansas Rule of Criminal
    
    Procedure 37.1 (2012). His sole point on appeal is that the circuit court erred in denying him
    
    a hearing on his petition. We affirm the circuit court’s order in part, and reverse and remand
    
    in part.
    
           In 2012, Beverage entered a negotiated plea of guilty to murder in the first degree;
    
    aggravated robbery; theft of property greater than $25,000; first-degree escape; four counts
    
    of second-degree battery; and theft of property $500 or less. The charges stemmed from
    
    Beverage’s 2010 escape, along with two others, from the Jack Jones Juvenile Detention
    
    Center in Pine Bluff after his attack on a correctional officer and his subsequent attacks on
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    correctional officers at another facility in 2010, 2011, and 2012.         He was sentenced
    
    consecutively to 480 months’ imprisonment on the first-degree-murder charge plus 120
    
    months on the aggravated-robbery charge, for a total time of imprisonment of 600 months.1
    
           On December 4, 2012, Beverage filed his petition for postconviction relief pursuant
    
    to Rule 37.1. In his petition, he alleged that his defense counsel was ineffective in failing to
    
    (1) seek a change of venue, in light of the prejudicial publicity the escape received; (2)
    
    challenge determinations as to his competency to stand trial by seeking a hearing and engaging
    
    an expert opinion; (3) object to the sentence he received on the bases that it amounted to a
    
    sentence of life imprisonment and there was no evidence that he intended or attempted to kill;
    
    (4) adequately investigate the facts and proof so as to pursue a change in venue or speedy-trial
    
    motion; (5) adequately investigate so as to subject the State’s evidence to meaningful
    
    adversarial testing, including the failure to challenge the autopsy of the murder victim; and
    
    (6) take the matter to trial.
    
           As already noted, the circuit court denied Beverage’s petition without a hearing. In
    
    its order, the circuit court found that because Beverage pleaded guilty and did not have a jury
    
    trial, he could not argue that he was prejudiced by a tainted jury. With respect to Beverage’s
    
    claims regarding his competency, the circuit court observed that Beverage’s record revealed
    
    two forensic examinations and that Beverage had failed to provide any evidence that a third
    
    evaluation would have resulted in a different finding from the other two. It further noted its
    
    
           1
           The sentences for Beverage’s remaining convictions ran concurrently with his
    sentence of 120 months for aggravated robbery.
    
    
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    review of the plea-hearing transcript, which the circuit court found to contradict Beverage’s
    
    allegation that he was not competent when he entered his negotiated plea of guilty. In
    
    addition, the circuit court found that Beverage’s right to speedy trial was not denied in light
    
    of an excludable period; therefore, the circuit court concluded, any failure by defense counsel
    
    to make a meritless speedy-trial motion did not constitute ineffective assistance of counsel.
    
    Finally, the circuit court ruled, Beverage’s claim that his defense counsel was ineffective for
    
    failing to challenge the results of the murder-victim’s autopsy was a challenge to the
    
    sufficiency of the evidence that was not a cognizable Rule 37 claim. Beverage now appeals
    
    the circuit court’s order.
    
           On appeal, Beverage argues that he was entitled to a hearing on his petition.
    
    Specifically, he contends that the circuit court erred in not granting him a hearing on his
    
    claims that his counsel (1) failed to obtain another mental-health evaluation or otherwise
    
    demonstrate his incompetence and (2) failed to explore the murder victim’s cause of death.2
    
    The State counters that there was no error by the circuit court because Beverage did not
    
    allege in his petition, as he was required to do, that but for his defense counsel’s errors, he
    
    would not have pleaded guilty and would have insisted on going to trial. Alternatively, the
    
    State avers, Beverage’s claims of ineffective assistance of counsel lack merit, and therefore, the
    
    circuit court did not err in denying the petition without a hearing.
    
    
    
           2
            All other claims raised below but not argued on appeal are abandoned. See, e.g.,
    Guevara v. State, 
    2014 Ark. 200
    ; Sales v. State, 
    2013 Ark. 218
    ; Simmons v. State, 
    2012 Ark. 58
    (per curiam).
    
    
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           It is well settled that this court does not reverse the denial of postconviction relief
    
    unless the circuit court’s findings are clearly erroneous. See Sales v. State, 
    2014 Ark. 384
    , 
    441 S.W.3d 883
    . A finding is clearly erroneous when, although there is evidence to support it,
    
    the appellate court, after reviewing the entire evidence, is left with the definite and firm
    
    conviction that a mistake has been committed. See id. In making a determination on a claim
    
    of ineffective assistance of counsel, this court considers the totality of the evidence. See id.
    
           The criteria for assessing the effectiveness of counsel were enunciated by the United
    
    States Supreme Court in Strickland v. Washington, 
    466 U.S. 668
     (1984). In asserting ineffective
    
    assistance of counsel under Strickland, the petitioner must first show that counsel’s performance
    
    was deficient. McDaniels v. State, 
    2014 Ark. 181
    , 
    432 S.W.3d 644
    . 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. See id. The reviewing court must
    
    indulge in a strong presumption that counsel’s conduct falls within the wide range of
    
    reasonable professional assistance. See id. Second, the petitioner must show that counsel’s
    
    deficient performance prejudiced the defense, which requires showing that counsel’s errors
    
    were so serious as to deprive the petitioner of a fair trial. See id. In doing so, the petitioner
    
    must show that there is a reasonable probability that, but for counsel’s errors, the fact-finder
    
    would have had a reasonable doubt respecting guilt, which means that the decision reached
    
    would have been different absent the errors. See id. A reasonable probability is a probability
    
    sufficient to undermine confidence in the outcome of the trial. See id. Unless a petitioner
    
    
    
    
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    makes both Strickland showings, it cannot be said that the conviction resulted from a
    
    breakdown in the adversarial process that renders the result unreliable. See id.
    
           Beverage’s sole contention on appeal is that the circuit court erred in denying his Rule
    
    37 petition without holding an evidentiary hearing. Rule 37.3 of the Arkansas Rules of
    
    Criminal Procedure requires an evidentiary hearing in a postconviction proceeding unless the
    
    petition and the files and records of the case conclusively show that the petitioner is entitled
    
    to no relief. See Lacy v. State, 
    2013 Ark. 34
    , 
    425 S.W.3d 746
    . If the files and the record
    
    conclusively show that the petitioner is not entitled to relief, the circuit court is required to
    
    make written findings to that effect, “specifying any parts of the files, or records that are relied
    
    upon to sustain the court’s findings.” Ark. R. Crim. P. 37.3(a) (2012). Where, as here, a
    
    defendant pleads guilty, the only claims cognizable in a proceeding pursuant to Rule 37.1 are
    
    those that allege that the plea was not made voluntarily and intelligently or that it was entered
    
    without effective assistance of counsel. See Scott v. State, 
    2012 Ark. 199
    , 
    406 S.W.3d 1
    .
    
           In the instant case, the circuit court made the required findings; however, we cannot
    
    say that the findings and record conclusively show that Beverage is entitled to no relief on the
    
    first of his two claims. With respect to Beverage’s claim that he was incompetent and that his
    
    defense counsel was ineffective for failing to challenge his competency determinations,3 the
    
    circuit court found that “[t]he Court’s record reflects that Mr. Beverage was given two (2)
    
    
           3
            We have previously observed that an “appellant’s claim that he was not competent
    and should not have been forced to proceed as if he had been found competent is essentially
    a direct assertion that he did not enter his plea intelligently.” Sandoval-Vega v. State, 
    2011 Ark. 393
    , at 6 n.1, 
    384 S.W.3d 508
    , 513 n.1 (per curiam).
    
    
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    forensic examinations” and that the evaluation conducted by Ron Faupel, Psy. D., “found
    
    [him] fit to proceed.” The circuit court opined that Beverage had failed to provide “any
    
    evidence that a third evaluation would result in a different finding” and that the transcript of
    
    Beverage’s guilty plea contradicted his allegation that he was incompetent.
    
           Our review of the record, however, reveals that Beverage was actually evaluated three
    
    different times: once on July 1, 2010, at the Pine Bluff Clinic of the Southeast Arkansas
    
    Behavioral Healthcare System; again at the Arkansas State Hospital on January 18, 2011, by
    
    Ron Faupel, Psy. D.; and yet again at the Arkansas State Hospital on March 1, 2011, by
    
    Natalie Jill Brush-Strode, M.D. It is this latter evaluation that is not referenced or relied upon
    
    by the circuit court in its order. Moreover, it is this evaluation that reflects Beverage’s score
    
    of 66 out of 100 on the Georgia Court Competency Test, while, according to Dr. Brush-
    
    Strode, a score greater than 70 is considered passing. In addition, it is in this evaluation that
    
    Dr. Brush-Strode observed, “[Beverage] did not demonstrate understanding of the mechanics
    
    and utility of a plea bargain, his legal rights, the role of his attorney in contesting perjury, or
    
    the process of a subpoena.” Notwithstanding her observations and Beverage’s score on the
    
    test, Dr. Brush-Strode’s summary of opinions included her conclusion that “[a]t the time of
    
    the examination, Mr. Beverage had the capacity to understand the proceedings against him
    
    and the capacity to effectively assist his attorney in his own defense.”
    
           Missing from the report contained in the record, however, is Dr. Brush-Strode’s
    
    reconciliation of her conflicting observations and conclusion. Of what appears to be a
    
    seventeen-page report, pages 14, 15, and 16 are missing, and it is those pages that would have
    
    
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    included the explanation of the evaluator’s forensic opinion on Beverage’s fitness to proceed.4
    
    Without any reconciliation of Dr. Brush-Strode’s observations and ultimate opinion on
    
    Beverage’s competency to stand trial, we are unable to say that the instant record conclusively
    
    shows that Beverage is entitled to no relief, particularly given that Beverage pleaded guilty and
    
    that the report suggests that he might not have understood the concept of a plea bargain.
    
    Accordingly, we reverse and remand for a Rule 37.1 evidentiary hearing on Beverage’s claim
    
    regarding his competency and his counsel’s failure to challenge his competency to stand trial.
    
           Beverage additionally claims that he is entitled to a hearing on his claim that his
    
    counsel was ineffective for failing to adequately investigate the murder victim’s cause of death.
    
    As already set forth, where, as here, a defendant pleads guilty, the only claims cognizable in
    
    a proceeding pursuant to Rule 37.1 are those that allege that the plea was not made
    
    voluntarily and intelligently or that it was entered without effective assistance of counsel. See
    
    Scott, 
    2012 Ark. 199
    , 
    406 S.W.3d 1
    . By pleading guilty, Beverage waived any claim that he
    
    was not guilty of the charges. See Sherman v. State, 
    2014 Ark. 474
    , 
    448 S.W.3d 704
     (per
    
    curiam). To establish prejudice and prove that he was deprived of a fair trial due to ineffective
    
    assistance of counsel, Beverage must demonstrate a reasonable probability that, but for
    
    counsel’s errors, he would not have so pleaded and would have insisted on going to trial. See
    
    
    
    
           4
           It is unclear from the record whether the missing pages of the report were ever filed
    with the circuit court. The pagination of our record is sequential; it is only through an
    examination of the report’s pagination that it becomes evident that the pages are missing.
    
    
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    Scott, 
    2012 Ark. 199
    , 
    406 S.W.3d 1
    . Beverage’s petition, however, does not meet this
    
    burden.
    
           The substance of Beverage’s adequate-investigation claim in his petition consisted
    
    solely of the following:
    
           Counsel failed to conduct a reasonably adequate guilt phase investigation so he could
           subject the state’s case-in-chief to meaningful adversarial testing. For example, counsel
           failed to consult with an expert concerning the cause of death of Mr. Wall. Although
           the autopsy report stated that Wall died as a result of a homicide, the report was very
           equivocal on the cause of death. It admitted that none of the blows were close to
           being lethal. It concluded that Mr. Wall had a weak heart. An expert could have
           been of the opinion that Mr. Wall suffered a heart attack from other causes.
    
                   . . . The case was triable on causation.
    
    A careful review of his claim reveals that Beverage failed to even allege that he would not
    
    have pleaded guilty had his counsel more thoroughly investigated the cause of death.
    
    Beverage’s failure to so allege is fatal to an ineffective-assistance claim stemming from a guilty
    
    plea. See Little v. State, 
    2012 Ark. 194
     (per curiam). Because Beverage failed to allege that
    
    he would not have pleaded guilty but for counsel’s alleged error, he cannot establish prejudice
    
    based on this argument, and the circuit court’s denial of relief on this claim was therefore not
    
    clearly erroneous. See, e.g., Scott v. State, 
    2012 Ark. 159
     (per curiam); Smith v. State, 
    2010 Ark. 473
     (per curiam). Moreover, without some showing of prejudice as required by
    
    Strickland, it was conclusive on the face of Beverage’s petition that no relief was warranted,
    
    and the circuit court did not err in declining to hold an evidentiary hearing on his
    
    ineffective-assistance-for-failure-to-adequately-investigate claim. See Scott, 
    2012 Ark. 159
    .
    
    
    
    
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           For the foregoing reasons, we affirm the circuit court’s order in part and reverse and
    
    remand in part.
    
           Affirmed in part; reversed and remanded in part.
    
           BAKER and HART, JJ., dissent in part and concur in part.
    
           GOODSON, J., dissents.
    
           KAREN R. BAKER, Justice, dissenting in part and concurring in part. While
    
    I agree with the majority’s holding that this case must be reversed and remanded for the
    
    circuit court to hold an evidentiary hearing, I would go no further. Therefore, I dissent.
    
           Beverage’s sole point on appeal is that the circuit court erred in denying his petition
    
    without affording him an evidentiary hearing. Having determined that the circuit court erred
    
    in failing to hold an evidentiary hearing, we should not address Beverage’s alternative
    
    argument. We are remanding Beverage’s Rule 37.1 petition for an evidentiary hearing and
    
    because the issue of his competency could affect the validity of his guilty plea, the majority’s
    
    analysis of Beverage’s alternative argument is flawed. Further, even if the majority’s analysis
    
    regarding Beverage’s alternative argument were correct, it is unnecessary to address Beverage’s
    
    Rule 37.1 claims in this piecemeal fashion.
    
           Accordingly, I dissent in part and concur in part.
    
           HART, J., joins.
    
           COURTNEY HUDSON GOODSON, Justice, dissenting. I must respectfully dissent
    
    from the majority opinion because I believe it is premature to remand this case for a hearing
    
    at this time. As the majority notes, the record contains a competency evaluation that appears
    
    
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    to be missing three pages. Because we cannot conduct a proper evaluation of the record
    
    without the missing pages, I believe we should remand for the limited purpose of settling the
    
    record before addressing the merits of the points on appeal.
    
           Our law is clear that the trial court is not required to hold a hearing on a
    
    postconviction petition if the record conclusively shows that he is entitled to no relief. See,
    
    e.g., Hutcherson v. State, 
    2014 Ark. 326
    , 
    438 S.W.3d 909
    . When the record is missing pages,
    
    our custom is to remand to settle the record. See, e.g., Lee v. State, 
    2011 Ark. 525
    ; Hayes v.
    
    State, 
    2013 Ark. 450
    ; Williams v. State, 
    362 Ark. 416
    , 
    208 S.W.3d 761
     (2005). In my opinion,
    
    this procedure better serves judicial economy in this case because it would allow us to review
    
    the entire record to determine whether it conclusively shows that Beverage is not entitled to
    
    relief, rather than requiring the trial court to hold a hearing on that issue. If, after reviewing
    
    the complete record, we determine that Beverage is not entitled to relief, no hearing would
    
    be required. In short, we should take the steps necessary to allow us to do our job of
    
    evaluating the record first, before imposing an additional, and potentially unnecessary, burden
    
    on the circuit court. Accordingly, I dissent from the majority opinion.
    
           James Law Firm, by: Lee D. Short, for appellant.
    
           Dustin McDaniel, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
    
    
    
    
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