Thomas v. State

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                    ARKANSAS SUPREME COURT
                                        No.   CR-13-842

                                                    Opinion Delivered   May 8, 2014

EUGENE THOMAS, III
                               APPELLANT            PRO SE MOTION FOR DUPLICATION
                                                    OF APPELLANT’S BRIEF AT PUBLIC
v.                                                  EXPENSE,
                                                    [ASHLEY COUNTY CIRCUIT COURT,
STATE OF ARKANSAS                                   NO. 02CR-10-155]
                                  APPELLEE

                                                    APPEAL DISMISSED; MOTION
                                                    MOOT.

                                       PER CURIAM

       In 2011, appellant Eugene Thomas, III, entered a plea of guilty to aggravated robbery and

commercial burglary. He was then sentenced by a jury to an aggregate term of 240 months’

imprisonment. The Arkansas Court of Appeals affirmed the sentence. Thomas v. State, 

, ___ S.W.3d ___.

       Subsequently, appellant filed in the trial court a timely, verified pro se petition for

postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). The petition

was denied, and appellant appealed to this court.

       Now before us is appellant’s motion to have his brief-in-chief duplicated at public

expense. We need not consider the merits of the motion because it is clear from the record that

appellant could not prevail if an appeal were permitted to go forward. An appeal from an order

that denied a petition for postconviction relief will not be allowed to proceed where it is clear
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that the appellant could not succeed. Dodge v. State, 

 (per curiam). Accordingly,

the appeal is dismissed, and the motion is moot.

       The claims raised in the petition concerned whether appellant’s attorney afforded him

effective assistance at trial and on direct appeal and, to a lesser degree, whether the evidence was

sufficient to sustain the judgment of conviction. A review of the record and the order reveals

that there was no merit to the Rule 37.1 petition.

       To the extent that any allegation in the petition was intended to challenge the

sufficiency of the evidence to sustain the judgment, it would appear that appellant

misunderstood the scope of a Rule 37.1 proceeding in his case. Because appellant entered a

plea of guilty, the issue of his guilt was not a matter to be decided by the jury, which was

empaneled to consider sentencing only. Moreover, even in cases wherein there was a trial to

the jury on the issue of the defendant’s guilt, Rule 37.1 does not provide a means to attack

the weight of the evidence to support the conviction. See Williams v. State, 

(per curiam); Pride v. State, 

, 

 (1985) (per curiam). Any assertion

that is a direct challenge to the sufficiency of the evidence is not cognizable under Rule 37.1.

, 

.

       With respect to the numerous assertions of ineffective assistance of counsel contained

in the Rule 37.1 petition, when considering an appeal from a trial court’s denial of a Rule

37.1 petition based on ineffective assistance of counsel, the sole question presented is whether,

based on a totality of the evidence under the standard set forth by the United States Supreme

Court in Strickland v. Washington, 

 (1984), the trial court clearly erred in holding


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that counsel’s performance was not ineffective. Taylor v. State, 

, ___ S.W.3d

___.

       The benchmark for judging a claim of ineffective assistance of counsel must be

“whether counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.” Strickland, 

.

Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard.

First, a petitioner raising a claim of ineffective assistance must show that counsel made errors

so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the

Sixth Amendment to the United States Constitution. Williams v. State, 

, 

 (2007). There is a strong presumption that trial counsel’s conduct falls within the

wide range of professional assistance, and an appellant has the burden of overcoming this

presumption by identifying specific acts or omissions of trial counsel, which, when viewed

from counsel’s perspective at the time of the trial, could not have been the result of reasonable

professional judgment. Henington v. State, 

, 

; McCraney v. State,

, 

 (per curiam). Second, the petitioner must show that counsel’s

deficient performance so prejudiced petitioner’s defense that he was deprived of a fair trial.

Holloway v. State, 

, ___ S.W.3d ___. A petitioner making an ineffective-

assistance-of-counsel claim must show that his counsel’s performance fell below an objective

standard of reasonableness. Abernathy v. State, 

, 

 (per curiam).

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, i.e., the decision reached


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would have been different absent the errors. Howard v. State, 

, 

(2006). A reasonable probability is a probability sufficient to undermine confidence in the

outcome of the trial. 

 The language, “the outcome of the trial,” refers not only to the

finding of guilt or innocence, but also to possible prejudice in sentencing. 

 Unless a

petitioner makes both showings, it cannot be said that the conviction resulted from a

breakdown in the adversarial process that renders the result unreliable. 

 “[T]here is no

reason for a court deciding an ineffective assistance claim . . . to address both components of

the inquiry if the defendant makes an insufficient showing on one.” Strickland, 

.

       In his petition, appellant did not challenge counsel’s representation with respect to the

entry of the guilty plea. His petition concerned the sentencing by the jury and the direct

appeal from the sentencing proceeding. He argued that counsel was ineffective in that counsel

did not formulate any kind of trial strategy; did not voir dire the jury on the presumption of

innocence, burden of proof, and the “corpus delicti rule” requiring the State to prove the

intent to commit the offense other than relying on “his stand-alone confession”; erred in

admitting in the opening statement and closing argument that appellant was guilty and thus

violated appellant’s right to avoid self-incrimination and failed to argue in the closing

argument that the State had not proved its case regarding intent beyond a reasonable doubt;

did not seek the corpus delicti jury instruction; failed to raise on appeal convincing arguments

concerning the trial court’s denial of a motion for mistrial; failed to raise on appeal the denial

of his motion for directed verdict; did not adequately research, prepare, amend, and perfect


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the appeal. The allegations of ineffective assistance of counsel were not sufficient to establish

that appellant was entitled to relief under Rule 37.1.

       When appellant entered his plea of guilty, that proceeding was his trial, which established

his guilt. Williams v. State, 

 (per curiam). When 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 voluntarily and intelligently entered with effective assistance of counsel. Jamett v. State,

, 

 (per curiam). Appellant does not contend that his plea was not

made voluntarily and intelligently, or that his plea was not made on the advice of competent

counsel. The allegations pertaining to presumption of innocence, intent to commit the offense,

and self-incrimination are not cognizable as appellant’s guilt was not at issue in the sentencing

proceeding.

       As to the remaining allegations of ineffective assistance of counsel, appellant failed to

show that counsel made any specific error that would undermine confidence in the jury’s

decision within the framework of Strickland. The claims asserted by appellant were essentially

conclusory statements without the factual substantiation required to establish ineffective

assistance of counsel. A claim of ineffective assistance of counsel must be supported by facts

sufficient to overcome the presumption that counsel was effective. See Mathis v. State, 

 (per curiam). Appellant did not explain why any particular jury instruction was warranted

nor did he state what arguments appellant could have made on appeal that would have been

meritorious. To succeed on an allegation that counsel should have made an argument in the trial

court or on appeal, the burden is on the petitioner to submit facts to support the proposition



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that a specific, meritorious argument could have been made and that failing to raise that specific

argument would not have been a decision supported by reasonable professional judgment. See

Montgomery v. State, 

.

       On the issue of whether trial counsel’s strategy was effective, trial strategy is largely a

subjective issue about which seasoned advocates could disagree. An approach that may prove

effective in one instance may fail entirely in another. Counsel is allowed great leeway in making

strategic and tactical decisions. See Ellis v. State, 

 (per curiam). Matters of trial

strategy, even if the strategy proves improvident, are not grounds for granting postconviction

relief. Prater v. State, 

, 

; Fretwell v. State, 

, 

(1987) (per curiam). Nevertheless, the decisions must be based on reasonable professional

judgment. Clarks v. State, 

 (per curiam); Leak v. State, 

 (per curiam).

Here, appellant fell far short of establishing that counsel’s conduct was outside the bounds of

reasonable professional judgment.

       Appeal dismissed; motion moot.

       Eugene Thomas, III, pro se appellant.

       No response.




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