Young v. State

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SUPREME COURT OF ARKANSAS
No. CR-13-699

FREDERICK YOUNG III Opinion Delivered February 26, 2015
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT
[NO. CR2010-3936]

STATE OF ARKANSAS HONORABLE JAMES LEON
APPELLEE JOHNSON, JUDGE

AFFIRMED.

COURTNEY HUDSON GOODSON, Associate Justice

Appellant Frederick Young III appeals the order entered by the Pulaski County

Circuit Court denying his petition for postconviction relief. For reversal, he contends that

the circuit court erred in ruling that he knowingly and voluntarily entered his no-contest and

guilty pleas and by finding that he did not receive ineffective assistance of counsel. We

affirm.

As shown by a sentencing order dated June 4, 2012, appellant entered a negotiated

plea of no contest to a charge of aggravated residential burglary and negotiated pleas of guilty

to the offenses of aggravated assault and felon in possession of a firearm. As a consequence,

he received concurrent sentences of thirteen years in prison to be followed by a two-year

suspended imposition of sentence. The record also reflects that the State nolle prossed one

count each of aggravated residential burglary and aggravated assault, as well as an allegation

of committing a felony in the presence of a child. In addition, the State agreed to forgo
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additional sentencing enhancements.

At the plea hearing, the circuit court directed appellant’s attention to the plea statement

appellant had executed. This document set out the range of sentences for the offenses and

stated that appellant was facing a total sentence spanning from ten years in prison to life

imprisonment. The plea statement also included a recitation of rights and contained

appellant’s acknowledgment that he understood the charges and the minimum and maximum

possible sentences for the offenses; that he understood that, by pleading guilty and no contest,

he was waiving the right to a jury trial and to an appeal; that he had discussed the case fully

with his attorney and that he was satisfied with his services; and that his pleas had not been

induced by any force, threat, or promises, apart from the plea agreement. As the factual basis

for the pleas, the prosecutor stated that on October 9, 2010, appellant, who had accumulated

four previous felony convictions, had remained unlawfully in the home of Dorothy Bomato

and had fired a pistol into the bedroom of Bomato’s daughter. Upon inquiry by the circuit

court, appellant agreed that he fully understood his rights and that he “freely, knowingly, and

voluntarily [pled] guilty to the offenses because I’m, in fact, guilty as charged.” The circuit

court accepted the pleas.

On August 31, 2012, appellant filed a timely, verified petition for postconviction relief

pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure. In his petition, he

alleged that he did not knowingly and voluntarily enter the pleas and that he received

ineffective assistance of counsel in accepting the negotiated pleas. After a hearing, the circuit

court issued a detailed order rejecting appellant’s claims. This appeal followed.

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At the outset, we observe that, when a defendant pleads guilty, the only claims

cognizable in Rule 37 proceedings are those which allege that the plea was not made

voluntarily and intelligently or that it was entered without effective assistance of counsel. Scott

v. State, 2012 Ark. 199, 406 S.W.3d 1; State v. Herred, 332 Ark. 241, 964 S.W.2d 391 (1998).

This court has adopted the rule for evaluating ineffective-assistance-of-counsel claims

involving guilty pleas as articulated in Hill v. Lockhart, 474 U.S. 52 (1985). See Haywood v.

State, 288 Ark. 266, 704 S.W.2d 168 (1986). In Hill, the Supreme Court held that the two-

part test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), applies when a guilty

plea is challenged based on ineffective assistance of counsel. Therefore, a defendant making

an ineffective-assistance-of-counsel claim must show that his or her counsel’s performance fell

below an objective standard of reasonableness and that this deficient performance prejudiced

the defense. Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918. In order for a defendant to

show that he was specifically prejudiced by counsel’s deficient assistance prior to, or during,

the entry of the defendant’s guilty plea, the defendant must show that a reasonable probability

exists that, but for counsel’s errors, the defendant would not have pled guilty and would have

insisted on going to trial. Hill, supra; Buchheit v. State, 339 Ark. 481, 6 S.W.3d 109 (1999).

The burden is entirely on the appellant to provide facts affirmatively supporting the claims of

prejudice. Mister v. State, 2014 Ark. 446. An appellant who has entered a guilty plea

normally will have considerable difficulty in proving any prejudice, as the plea rests upon an

admission in open court that the appellant did the act charged. Scott, supra.

This court does not reverse the denial of postconviction relief unless the circuit court’s

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findings are clearly erroneous. Golden v. State, 2013 Ark. 144, 427 S.W.3d 11. 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 made. Decay v. State, 2014 Ark. 387, 441 S.W.3d 899.

Appellant first argues that the circuit court erred in finding that he voluntarily and

knowingly entered the pleas of no contest and guilty. His argument is that he felt pressured

into pleading no contest and guilty due to the coercive atmosphere existing at the time he

entered the pleas. In his testimony at the hearing, appellant maintained that his attorney did

not communicate often enough with him and did not provide him with discovery materials

until shortly before the plea hearing. Appellant also claimed that his counsel first informed

him about the possible range of sentences in conversations that took place immediately prior

to the plea hearing. He testified that, during this discussion, his counsel emphasized the

potential for a life sentence; that his family members were upset to the point of crying; and

that he felt “backed into a corner.” Appellant summarized his sentiments by saying,

This is my lawyer. He done got $7,000 of my money. Won’t come see me.
He ain’t trying to fight for me. All he’s talking about is a plea deal. What am
I supposed to do, man?

In contrast to appellant’s testimony, the record reflects that appellant signed a plea

statement affirming that his pleas were not induced by threat, force, or promise, apart from

the plea agreement. Appellant also stated in open court that he was freely, knowingly, and

voluntarily entering his pleas. In its order denying appellant’s petition, the circuit court

recalled that appellant and his mother both testified at the hearing that counsel had told them

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that he was willing to fight for appellant at trial. The court also gave credence to counsel’s

testimony that he conveyed the plea offer to appellant, that he discussed with appellant the

option of accepting the offer or proceeding with trial, as well as the ramifications of accepting

the offer or being found guilty at trial. Based on the record as a whole, the circuit court

found that appellant wanted to accept the plea agreement and that he did so both knowingly

and voluntarily. In making this finding, the circuit court also was persuaded by the fact that

appellant had insisted on pleading no contest instead of guilty to the charge of aggravated

residential burglary based on appellant’s erroneous belief that his having been invited into the

home made a difference.

Here, the circuit court concluded that appellant was not credible in his testimony that

he would not have entered the pleas of no contest and guilty if he had not been pressured to

do so. It is well settled that this court defers to the circuit court’s determination on matters

of credibility in a Rule 37 appeal. White v. State, 2013 Ark. 171, 426 S.W.3d 911. In

deference to the circuit court’s credibility determination, we are not able to say that the

court’s decision is clearly erroneous.

In the remaining issues, appellant asserts that he received ineffective assistance of

counsel. First, appellant contends that counsel did not fulfill his duty to investigate the

circumstances surrounding the charges. In support of this allegation, appellant presented at

the hearing the testimony of Matilda Buchanen, a private investigator. Buchanen testified that

she obtained the discovery materials provided by the prosecuting attorney. Based on her

review of the prosecutor’s file, Buchanen identified a number of issues that she believed

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warranted further investigation. These matters included, among other things, missing pages

from the prosecutor’s file and witness statements, and the absence of statements taken from

two witnesses. Buchanen also said that it would be beneficial to listen to the actual recordings

of the witnesses’ statements. She also pointed out that the police did not find shell casings or

any bullet holes in Bomato’s trailer but that one witness mentioned giving a shell casing to

the police.

In our review, we must indulge in a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance. Sales v. State, 2014 Ark. 384, 441

S.W.3d 883. The defendant claiming ineffective assistance of counsel has the burden of

overcoming that presumption by identifying the acts and omissions of counsel which, when

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

reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55.

Although it is true that counsel has a duty to conduct a reasonable investigation or to make

a reasonable decision that a particular investigation is unnecessary, a petitioner under Rule

37.1 who alleges ineffective assistance of counsel for failure to perform adequate investigation

must delineate the actual prejudice that arose from the failure to investigate and demonstrate

a reasonable probability that the specific materials that would have been uncovered with

further investigation could have changed the outcome of trial. Watson v. State, 2014 Ark.

203, 444 S.W.3d 835. A petitioner who asserts ineffective assistance for failure to investigate

must show that further investigation would have been fruitful and that the specific materials

identified that counsel could have uncovered would have been sufficiently significant to raise

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a reasonable probability of a different outcome at trial. Id. General assertions that counsel did

not aggressively prepare for trial are not sufficient to establish a claim of ineffective assistance

of counsel. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895.

In the present case, appellant offered testimony concerning matters that might have

been explored by further investigation. However, appellant’s assertions fail to demonstrate

the requisite prejudice, because appellant did not provide facts concerning evidence or

information that counsel could have discovered that raised a reasonable probability that

appellant would not have entered the plea. As such, appellant’s claim is wholly conclusory,

and neither conclusory statements nor allegations without factual substantiation are sufficient

to overcome the presumption of competence and cannot provide a basis of postconviction

relief. Id.

Next, appellant asserts that his counsel failed to keep him reasonably informed about

the status of his case and that he did not promptly comply with requests to provide him with

the discovery materials supplied by the prosecuting attorney. On this issue, the circuit court

determined that counsel’s conduct did not fall below an objective standard of reasonableness.

The court found that counsel met with appellant prior to the hearings in court and five times

while appellant was in jail. The circuit court also found that counsel discussed the case with

appellant for at least one and a half hours immediately before the plea hearing. In addition,

the circuit court credited counsel’s testimony that appellant had a tendency to speak too freely

and that counsel purposely did not provide discovery to appellant far in advance of trial for

fear that another inmate might be able to use the information to gain an advantage with the

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prosecuting attorney.

We have held that general assertions that counsel did not meet with the defendant

often enough, or did not prepare for trial aggressively enough, do not provide sufficient

grounds for ineffective assistance of counsel. Polivka, supra; Furr v. State, 297 Ark. 233, 761

S.W.2d 160 (1988). For this reason, and because the circuit court’s findings are not clearly

erroneous, we affirm on this point.

Finally, appellant urges this court to reverse the circuit court’s decision based on the

cumulative effect of counsel’s errors. However, when a defendant alleges several errors

amounting to ineffective assistance of counsel, at least one error, standing alone, must meet

the standard of Strickland for the defendant to be successful; we do not recognize an

ineffective-assistance-of-counsel claim based purely on the cumulative effect of counsel’s

errors. Polivka, supra; Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000); Huddleston v. State,

339 Ark. 266, 5 S.W.3d 46 (1999).

Affirmed.

Omar F. Greene II, for appellant.

Dustin McDaniel, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.

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