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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