Thurmond v. State , 2014 Ark. 176 ( 2014 )

Cite as 2014 Ark. 176
SUPREME COURT OF ARKANSAS
No. CR-12-802
SAM EDWARD THURMOND, SR. Opinion Delivered April 17, 2014
APPELLANT
PRO SE APPEAL FROM THE
V. FAULKNER COUNTY CIRCUIT
COURT,
[NO. 23CR-11-318]
STATE OF ARKANSAS
APPELLEE HONORABLE CHARLES EDWARD
CLAWSON, JR., JUDGE
APPEAL DISMISSED.
PER CURIAM
In 2012, appellant Sam Edward Thurmond, Sr., entered a negotiated plea of guilty to a
charge of theft of property in the Faulkner County Circuit Court, and he received a sentence of
120 days’ imprisonment in the county jail and 60 months’ probation. Appellant filed in the trial
court a timely petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1
(2013). The trial court held a hearing on both the Rule 37.1 petition and a petition for probation
revocation filed by the State. In an order filed in court on May 21, 2012, the trial court revoked
appellant’s parole, imposing 360 additional days in the county jail and additional parole time. It
also denied the Rule 37.1 petition in an order entered June 1, 2012.1 Appellant appeals the order
denying postconviction relief.
Appellant was released from the Faulkner County jail after filing this appeal, and he is
1
Because appellant was incarcerated on the charge at the time that the order denying
postconviction relief was entered, the trial court had jurisdiction to grant or deny relief. See
Branning v. State, 2010 Ark. 401.
Cite as 2014 Ark. 176
therefore no longer entitled to postconviction relief. Herron v. State, 2011 Ark. 71 (per curiam);
see also Bohanan v. State, 336 Ark. 367, 985 S.W.2d 708 (1999) (holding that a petitioner was not
“in custody” for purposes of Rule 37 where the petitioner was on parole). Because appellant can
no longer receive relief on his claims for postconviction relief, those claims are moot, and we
must dismiss the appeal.
Moreover, even if appellant’s claims were not moot, the appeal is without merit.
Appellant raises some issues on appeal concerning trial error, violations of attorney-client
privilege, and attorney conflict that were not developed below and for which he received no
ruling. See Hogan v. State, 2013 Ark. 223 (per curiam) (The appellant had an obligation to obtain
a ruling on each claim, and he could not raise new arguments on appeal.). The remaining issues
in the appeal concern appellant’s allegation that trial counsel was ineffective for failing to seek
suppression of evidence concerning a lineup. Appellant contends that the copies of the photos
that comprised the lineup that were provided to the defense were suggestive and that, because
counsel did not act appropriately to suppress that evidence and his recommendations concerning
that evidence and entry of a plea were therefore flawed, appellant’s plea was not knowingly or
voluntarily entered.
Trial counsel testified that his examination of the original photos that would have been
introduced showed that the lineup was not suggestive and that, as a consequence, he could not
have challenged the evidence with what would have been a meritless claim. The trial court
found that counsel’s testimony was credible. The trial court also found that counsel’s
recommendations based on that conclusion were the result of a reasonable strategic decision and
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Cite as 2014 Ark. 176
that it followed that appellant’s plea was knowingly and voluntarily entered. When this court
reviews an order that denies postconviction relief, it does not reverse unless the trial court’s
findings are clearly erroneous. Hayes v. State, 2014 Ark. 104, ___ S.W.3d ___. 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. Id.
Appellant’s claims hinged on the potential challenge to the lineup, and the record
supports the trial court’s conclusion that appellant did not demonstrate that there was a
meritorious challenge that trial counsel could have made to that lineup. Failure to make a
meritless objection or motion does not constitute ineffective assistance of counsel. Nelson v.
State, 2014 Ark. 28 (per curiam). The trial court did not clearly err in denying postconviction
relief.
Appeal dismissed.
Sam Edward Thurmond, Sr., pro se appellant.
Dustin McDaniel, Att’y Gen., by: Nicana C. Sherman, Ass’t Att’y Gen., for appellee.
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