Flemons v. State , 499 S.W.3d 215 ( 2016 )

Cite as 2016 Ark. 323
SUPREME COURT OF ARKANSAS
No. CR-15-846
Opinion Delivered: September 22, 2016
AARON ANTHONY FLEMONS
APPELLANT PRO SE APPEAL FROM THE
V. SEBASTIAN COUNTY CIRCUIT
COURT, FT. SMITH DISTRICT;
STATE OF ARKANSAS PRO SE MOTIONS TO FILE
APPELLEE BELATED REPLY BRIEF, TO FILE
SUPPLEMENTAL ABSTRACT, AND
FOR POLYGRAPH EXAMINATION
AND STAY [NOS. 66CR-00-827,
66CR-08-1404]
HONORABLE STEPHEN TABOR,
JUDGE
AFFIRMED; MOTIONS MOOT.
PER CURIAM
Appellant Aaron Anthony Flemons appeals the denial of his pro se petition for
postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2015). Flemons
tendered a reply brief to this court after the deadline for filing a reply brief had passed. He
then filed motions that seek leave to file a belated reply brief, leave to file a supplemental
abstract, and an order for polygraph examinations and to stay the proceedings. Flemons also
tendered with his motions a reply brief in which he included his proposed supplemental
Cite as 2016 Ark. 323
abstract, and he seeks to clarify the arguments made in the first point that he raises on appeal.
In Flemons’s motion to stay the proceedings and to have polygraph examinations
conducted, he also seeks to further support the same point on appeal. As discussed below,
Flemons’s arguments in his petition and the record on appeal are sufficiently clear for our
determination of the issues. We accordingly affirm the denial of postconviction relief, and
the motions are therefore moot.
Flemons’s Rule 37.1 petition alleged that he received ineffective assistance of counsel
in the proceeding for revocation of a suspended sentence. Flemons had entered nolo
contendere pleas in two cases. He was sentenced to 72 months’ imprisonment and 120
months’ suspended imposition of sentence on a charge of possession of cocaine with intent
to deliver in 66CR-00-827 and to 12 months’ imprisonment and 60 months’ suspended
imposition of sentence on a third-degree domestic-battery charge in 66CR-08-1404. The
challenged judgment imposed an aggregate sentence of 360 months’ imprisonment in these
two criminal cases in conjunction with the court’s granting a petition to revoke (PTR) the
suspended sentences.
Flemons’s attorney on appeal of the revocation order filed a no-merit brief, and the
Arkansas Court of Appeals affirmed the judgment and granted the appellate attorney’s
motion to withdraw. Flemons v. State, 2014 Ark. App. 131. Flemons filed a timely petition
for postconviction relief, and, with the trial court’s permission, he amended the petition.
The trial court held an evidentiary hearing on the amended petition and entered an order
finding that counsel was not ineffective and dismissing the petition. Flemons now raises
2
Cite as 2016 Ark. 323
two points on appeal. We treat any arguments made below but not raised in the appeal as
abandoned. State v. Grisby, 370 Ark. 66, 257 S.W.3d 104 (2007).
This court will not reverse a trial court’s decision granting or denying postconviction
relief unless it is clearly erroneous. Houghton v. State, 2015 Ark. 252, 464 S.W.3d 922. 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. Turner v. State, 2016 Ark. 96, 486 S.W.3d 757.
Both points on appeal concern Flemons’s allegations that trial counsel was ineffective.
Our standard for ineffective-assistance-of-counsel claims is the two-prong analysis set forth
in Strickland v. Washington, 466 U.S. 668 (1984). Rasul v. State, 2015 Ark. 118, 458 S.W.3d
722. To prevail on a claim of ineffective assistance of counsel, the petitioner must show
that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced
his defense. Mister v. State, 2014 Ark. 446. Unless a petitioner makes both showings, the
allegations do not meet the benchmark on review for granting relief on a claim of ineffective
assistance. Houghton, 2015 Ark. 252, 464 S.W.3d 922.
Counsel is presumed effective, and allegations without factual substantiation are
insufficient to overcome that presumption. Henington v. State, 2012 Ark. 181, 403 S.W.3d
55. A petitioner claiming deficient performance must show that counsel’s representation
fell below an objective standard of reasonableness, and this court must indulge in a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance. Id. A petitioner has the burden of overcoming the presumption that counsel is
effective by identifying specific acts and omissions that, when viewed from counsel’s
3
Cite as 2016 Ark. 323
perspective at the time of trial, could not have been the result of reasonable professional
judgment. Id.
A claimant must show that there is a reasonable probability that the fact-finder’s
decision would have been different absent counsel’s alleged errors in order to meet the
second prong of the test. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883. A reasonable
probability is a probability sufficient to undermine confidence in the outcome of the trial.
Id. In assessing prejudice, courts “must consider the totality of the evidence before the
judge or jury.” Rasul, 2015 Ark. 118, at 7, 458 S.W.3d at 727 (quoting Strickland, 466 U.S.
at 695).
In his first point on appeal, Flemons asserts that trial counsel was ineffective in failing
to adequately investigate a plea offer, in that she provided incorrect information concerning
his parole eligibility and that he would have accepted the plea deal as offered if counsel had
provided accurate information. The evidence at the hearing on the Rule 37.1 petition
established that a plea offer had been made by the deputy prosecutor. That evidence also
established that, under the terms of the proposed agreement, if the plea deal was accepted,
the PTR would have been withdrawn.
Before the hearing on the PTR, the prosecution had submitted a plea offer that
covered the PTR and the pending charges that had prompted the PTR. Specifically, the
offer was that the prosecution would recommend 25-year sentences on Y-felony drug-
delivery charges in three cases, 6-year flat sentences on domestic-battery charges in two
cases, and a 6-year flat sentence on a charge of leaving the scene of an injury accident and
endangering the welfare of a minor, with all sentences to be concurrent. In addition, the
4
Cite as 2016 Ark. 323
prosecution would withdraw the PTR, provided that Flemons entered pleas to all of these
new charges.
Flemons alleges that counsel incorrectly advised him that the battery charges would
trigger a statutory requirement that he serve the full time on the recommended sentences
without eligibility for parole, that is, that he would not be eligible for parole during the
aggregate 25-year term recommended. He contends that he would have accepted the plea
offer if he had been correctly advised and that the outcome of the PTR proceedings would
have been different, in that the PTR would have been withdrawn. There was evidence at
the Rule 37 hearing that Flemons had declined the plea offer and countered with a proposal
that he serve 15 years on a conspiracy charge, with the battery charges nolle prossed. There
was also evidence that Flemons would have been willing to accept an offer for the full 25-
year sentence recommendation, provided the battery charges were dropped. However,
there was testimony that the prosecution was unwilling to drop the battery charges and, as
the deputy prosecutor put it, she would only accept a global agreement on all charges.
Flemons contends that he was unwilling to accept the plea deal because he mistakenly
believed that a plea to the battery charges would cause him to be ineligible for parole, and
he asserts that trial counsel should have advised him that the statute’s application would not
be triggered if he entered a plea to the charges. In its brief, the State correctly notes that
Flemons did not receive a ruling on this argument.
When the trial court does not summarily deny relief on a Rule 37.1 petition without
a hearing under Arkansas Rule of Criminal Procedure 37.3(a), the court must determine
the issues and make written findings of fact and conclusions of law with respect to those
5
Cite as 2016 Ark. 323
issues. Ark. R. Crim. P. 37.3(c). When the trial court provides written findings on at least
one, but less than all of the claims in the petition, however, the appellant has an obligation
to obtain a ruling on any omitted issues to be considered on appeal. Magness v. State, 2015
Ark. 185, 461 S.W.3d 337 (per curiam). Any claim on which the appellant failed to obtain
a ruling is procedurally barred from our review. Fisher v. State, 364 Ark. 216, 217 S.W.3d
117 (2005). The trial court provided written findings on other issues raised in Flemons’s
Rule 37.1 petition.
In fact, the trial court addressed Flemons’s claims in the amended petition that
counsel had failed to adequately investigate the plea offer. The order denying
postconviction relief specifically addressed a number of other bases for inadequate
investigation that Flemons had identified, such as the failure to interview relevant witnesses.
In order to identify the specific act alleged as ineffective assistance and receive relief on his
claim that counsel failed to adequately investigate, a petitioner must describe how a more
searching pretrial investigation would have changed the results of his trial. Wertz v. State,
2014 Ark. 240, 434 S.W.3d 895.
Although there may be times when a broad general ruling on a failure to investigate
was intended to address unspecified bases for the claim, that was not the case here. Flemons
identified a number of specific bases for failure to investigate in his amended petition, but
his argument on appeal was not one of those bases described in the petition. The ruling by
the trial court specifically discussed the bases that were identified, and it did not address the
claim that Flemons would now make, that is, that trial counsel had made affirmative
representations about parole eligibility and was ineffective in failing to conduct an adequate
6
Cite as 2016 Ark. 323
investigation about Flemons’s parole eligibility on the recommend sentences in the plea
offer.1
In his second point on appeal, Flemons contends that trial counsel was ineffective for
failing to raise due-process violations arising out of prosecutorial misconduct. He also asserts
that the trial court erred in failing to permit him to develop testimony on the issue. Flemons
alleges that he is innocent of the battery charges, that one of the alleged victims had recanted
her accusations in an affidavit, and that the prosecutor refused to drop the charges before
the hearing on the PTR despite having no probable cause to sustain the charges. Flemons
contends that the trial court erred in not allowing him to pursue a line of questioning
designed to elicit testimony from the prosecutor about her motivations in declining to
dismiss the battery charges or to drop those charges from the proposed plea agreement. The
trial court found that Flemons had not demonstrated that any prosecutorial misconduct
existed to which counsel might successfully have objected.
Where a petitioner asserts ineffective assistance for failure to make a motion or
argument, the petitioner must show that the motion or argument would have been
meritorious because the failure to make an argument without merit is not ineffective
assistance of counsel. Sims v. State, 2015 Ark. 363, 472 S.W.3d 107. Flemons contends
that, if allowed to pursue the issue, he would have shown that the prosecutor’s conduct in
using the leverage of potential convictions on the more serious charges in order to compel
1
To the extent that Flemons may have sought to amend his petition by adding this
new claim during the hearing, the trial court effectively denied that request by declining to
rule on the issue. Flemons mentions in his argument on appeal that he raised other bases
for the failure to investigate, but he develops no argument for any error in that regard.
7
Cite as 2016 Ark. 323
a plea on the battery charges was motivated by anger about multiple instances when the
victim recanted under similar circumstances. Yet, even if the prosecutor was so motivated,
Flemons’s argument that this amounted to prosecutorial misconduct hinges on his position
that the prosecutor did not have sufficient evidence to prosecute the charges.
Despite Flemons’s allegations to the contrary, the prosecutor did have evidence to
prosecute Flemons on the two battery charges, and sufficient probable cause to sustain those
charges. Two police officers testified at the PTR hearing. Each testified to having
responded to one of two calls about domestic disputes involving Flemons.
One officer testified that Jessica Flemons had reported that Flemons had beaten her,
that he observed injuries consistent with her report, that Flemons was present at the time,
and that the officer had taken photographs of Jessica’s injuries. The photographs taken were
introduced into evidence. Flemons alleged that Jessica had later recanted her statements to
the officer, and, although Jessica testified at the PTR hearing, she did not testify concerning
her report of a battery to the officer. Nevertheless, the photos and officer’s observations at
the time of the incident were evidence that Flemons had injured Jessica, and that evidence
also would have supported a decision by the deputy prosecutor to pursue the charges on the
basis that Jessica’s original report appeared more credible than the statement recanting.
The second officer testified that he found Satara Wilson at a convenience store, and
that he returned with her to a house from which she reported she had fled, leaving Flemons
there with her children. Satara reported that Flemons had hit her on her ear and that the
injury hurt. The officer testified that no one answered his banging on doors at the residence
8
Cite as 2016 Ark. 323
for about thirty minutes. When they gained entry by force, the officer discovered that
Flemons was in the house with the children, who were crying and huddled together.
Each officer’s testimony provided evidence sufficient to support the relevant battery
charge against Flemons. Because the prosecutor had probable cause for the battery charges,
any objection by trial counsel to the prosecutor’s actions in pursuing the charges or failing
to withdraw the charges while the plea negotiations were pending would have been without
merit. Flemons final point on appeal is therefore also without merit.
Affirmed; motions moot.
Aaron Anthony Flemons, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee
9