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SUPREME COURT OF ARKANSAS
No. CR-15-153
BRIAN ELAM SIMS Opinion Delivered October 8, 2015
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT
[NO. 60CR-12-263]
STATE OF ARKANSAS HONORABLE HERBERT THOMAS
APPELLEE WRIGHT, JUDGE
AFFIRMED.
COURTNEY HUDSON GOODSON, Associate Justice
Appellant Brian Elam Sims appeals the order entered by the Pulaski County Circuit
Court denying his petition for postconviction relief pursuant to Rule 37.1 of the Arkansas
Rules of Criminal Procedure. For reversal, Sims contends that the circuit court erred in
rejecting his seven claims of ineffective assistance of counsel and by denying his petition
without a hearing. We affirm on all issues.
I. Factual Background
The prosecuting attorney in Pulaski County charged Sims with the offenses of first-
degree murder, second-degree battery, and aggravated assault. Sims’s first trial ended in a
mistrial after it was discovered that his attorney had been suspended from the practice of law.
The record of the second trial reflects that the charges stemmed from an incident that
occurred on September 24, 2011, at the Rock City Lounge in Little Rock. According to the
testimony, Sims and his wife, Charleena Sims, were at the bar for a birthday celebration with
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Charleena’s sister, Hannah Monroe; Hannah’s boyfriend, Chris Martis; and Chris’s aunt and
uncle, Michelle and Rodney Brazeal. Robert Cauley was an acquaintance of the bartender,
Tina Powell, and Robert arrived at the lounge with his friend, Thomas Jones, at
approximately 1:30 a.m. to help Tina close the bar.
At closing time, Robert and Thomas were in the kitchen eating pizza when they heard
a commotion outside the bar. By all accounts, Charleena was causing a disturbance. The
witnesses described her as “belligerent,” and “out of control” and said that she was yelling
and screaming, cussing at everyone, “throwing legs and arms,” beating on the windows, and
kicking the door of the bar. Robert, who stood six-feet tall and weighed 258 pounds,
approached Charleena from behind and “bear hugged” her. With Hannah’s help, Robert
carried Charleena to the Simses’ vehicle and placed her inside. Tina testified that she saw
Sims walk down the sidewalk carrying a knife cupped in his hand and held behind his back.
Thomas testified that Robert remained at the Sims’s vehicle in a kneeling position and
that he appeared to be conversing with someone inside the car. Thomas stated that Sims
approached Robert from the rear and struck Robert on either his shoulder or his neck. Upon
seeing this altercation, Thomas ran toward the Simses’ vehicle and found Sims on top of and
straddling Robert, as Robert lay on his back on the ground. Thomas testified that Sims was
stabbing Robert, as Robert pleaded for Sims to stop. Thomas intervened, during which time
Sims stabbed Thomas. Thomas testified that he placed his left hand on Sims’s shoulder and
said that Sims struck upwards twice, hitting Thomas’s hand and his arm.
Rodney also observed Robert in a crouched position beside the Simses’ car. He
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testified that Sims was behind Robert and that he saw Sims swing at Robert, striking Robert
in the lower back. Like Thomas, Rodney ran to the area, observed Sims on top of Robert,
and saw Sims stabbing Robert. Rodney also testified that Robert was asking Sims to stop
stabbing him. Rodney dislodged the knife from Sims’s hand and threw Sims backwards.
Rodney secured the knife, and he, Thomas, and others tended to Robert’s wounds.
In her testimony, Hannah stated that she walked to her car after putting Charleena in
the vehicle. She next saw Rodney running in the direction of the Simses’ vehicle. Hannah
said that she did not know who was driving the Simses’ vehicle, but she testified that the
vehicle backed up and stopped before leaving the parking lot. She stated that Sims and
Charleena exited the car and that they took turns waving a gun at the crowd. Hannah
testified that both Sims and Charleena pointed the gun at her.
Robert died at the hospital days later. Dr. Charles Paul Kokes, the chief medical
examiner, testified that the cause of death was multiple stab wounds. Specifically, Robert had
been stabbed seven times. He received two stab wounds to the right upper chest; one in the
lower left side of the chest; one to the lower left side of the back; another to the middle of the
back; one to the back right shoulder; and lastly, one to the back side of the right thigh.
Sims testified and asserted that he had killed Robert, whom he did not know, in self-
defense. Sims said that he noticed a crowd around his vehicle when he walked out of the bar.
He denied that he saw Robert carry Charleena to their vehicle. Sims stated that Charleena
was seated in the front passenger seat when he reached the car and that he was standing beside
the driver’s side door and about to get inside to leave, when someone struck him in the head.
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He testified that the blow knocked him to the ground and that, when he looked up, he saw
a “humongous” man coming down upon him. Sims said that he feared for his and his wife’s
lives and that he retrieved a knife from his back pocket and began swinging upward. He did
not recall anyone else touching him and had no recollection of stabbing Thomas. Sims stated
that he was able to roll to the side after the last time he struck Robert and that someone
pushed Robert off of him. He said that no one took the knife from him and that he
immediately got into his car to leave. Sims denied having a firearm in his hand at any time.
A jury in the Pulaski County Circuit Court found Sims guilty as charged of first-degree
murder, second-degree battery, and aggravated assault. As a consequence, he received an
aggregate term of thirty-three years’ imprisonment. The court of appeals affirmed his
convictions and sentences. Sims v. State, 2014 Ark. App. 312. Thereafter, Sims filed a timely,
verified petition for postconviction relief claiming that he had received ineffective assistance
of counsel at trial. In his petition, Sims alleged that counsel’s performance was deficient
because he failed to request various jury instructions. He also claimed that his counsel was
ineffective with respect to his handling of evidentiary issues.1 The circuit court entered an
order denying the petition without a hearing. Sims now appeals, challenging the circuit
court’s findings and the court’s failure to hold a hearing.
II. Standards of Review
On review, we assess the effectiveness of counsel under the two-prong standard set
1
Although Sims raised a number of other issues in his petition, he does not advance
those issues on appeal. Therefore, those issues are considered abandoned. Houghton v. State,
2015 Ark. 252, 464 S.W.3d 922.
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forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668
(1984). Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. In asserting ineffective assistance of
counsel under Strickland, the petitioner must show that counsel’s performance was deficient.
Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. 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. State v. Rainer, 2014 Ark. 306, 440 S.W.3d 315. The reviewing court
must indulge in a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. Scott v. State, 2012 Ark. 199, 406 S.W.3d 1. 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. Wertz
v. State, 2014 Ark. 240, 434 S.W.3d 895.
In order to satisfy the second prong of the Strickland test, 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. Montgomery v. State, 2011 Ark.
462, 385 S.W.3d 189. In doing so, the petitioner must show that there is a reasonable
probability that the fact-finder’s decision would have been different absent counsel’s errors.
State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830. A reasonable probability is a probability
sufficient to undermine confidence in the outcome of the trial. Adams v. State, 2013 Ark.
174, 427 S.W.3d 63. In assessing prejudice, courts “must consider the totality of the evidence
before the judge or jury.” Strickland, 466 U.S. at 695. There is no reason for a court deciding
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an ineffective-assistance claim to address both components of the inquiry if the defendant
makes an insufficient showing on one. Decay v. State, 2014 Ark. 387, 441 S.W.3d 899.
III. Jury Instructions
The first four issues that Sims raises on appeal concern jury instructions. He contends
that the circuit court erred in concluding that his trial counsel was not ineffective by failing
to offer proper instructions. We address his arguments in order.
A. Fincham and Extreme-Emotional-Disturbance Manslaughter
As his first point on appeal, Sims contends that counsel neglected to ensure that a
complete instruction on extreme-emotional-disturbance manslaughter was provided to the
jury. The circuit court granted Sims’s request, that in addition to instructions on first-and
second-degree murder, to give an instruction on the lesser-included offense of extreme-
emotional-disturbance manslaughter. A person commits this category of manslaughter if he
causes the death of another person under circumstances that would be murder, except that he
causes the death under the influence of extreme emotional disturbance for which there is
reasonable excuse. Ark. Code Ann. § 5-10-104(a)(1)(A) (Repl. 2013).
Sims’s trial took place in the wake of our decision in Fincham v. State, 2013 Ark. 204,
427 S.W.3d 643, where we held that the standard step-down provision of the AMI Crim. 2d
301 instruction on lesser-included offenses effectively foreclosed the jury’s consideration of
extreme-emotional-disturbance manslaughter. Thus, we agreed with Fincham’s argument
that the circuit court should have omitted the following language when instructing the jury:
If you have a reasonable doubt of the guilt of the defendant on the greater
offense, you may find him guilty only of the lesser offense. If you have a
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reasonable doubt as to the defendant’s guilt of all offenses, you must find him
not guilty.
In so holding, we reasoned that, under the instruction as it was then constituted, the jury was
instructed not to consider the lesser-included offense of extreme-emotional-disturbance
manslaughter unless it first found reasonable doubt as to greater murder offenses. Yet, a
defendant could be found guilty of extreme-emotional-disturbance manslaughter only if the
jury had first found him guilty of murder. Given this conundrum, we said that “the jury
should have been instructed to consider manslaughter after it found Fincham guilty of
murder.” Fincham, 2013 Ark. 204, at 8, 427 S.W.3d at 648. In concluding the opinion, we
urged the Committee on Criminal Jury Instructions to consider revising the instruction so
that future juries may be properly instructed when considering extreme-emotional-
disturbance manslaughter.
Sims’s trial took place one month after our decision in Fincham and before the
committee had the opportunity to revise our jury instructions. At the instruction conference
at Sims’s trial, the court and counsel discussed Fincham and crafted an instruction to follow the
ones on first- and second-degree murder. The instruction stated,
If you find Brian Sims guilty of first degree murder or second degree murder,
you will then consider the charge of manslaughter.
To sustain this charge, the State must prove beyond a reasonable doubt that:
Brian Sims caused the death of Robert Cauley under circumstances that would
be murder, except that he caused the death under the influence of extreme
emotional disturbance for which there was a reasonable excuse. You should
determine the reasonableness of the excuse from the viewpoint of a person in
Brian Sims’s situation under the circumstances as he believed them to be.
In his Rule 37.1 petition and in his argument on appeal, Sims contends that the
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instruction was incomplete, and thus his counsel performed deficiently, because it omitted his
burden that he was only to raise a reasonable doubt in the minds of the jurors. He also claims
that counsel was deficient for not elaborating on this point during closing argument. Sims
bases this contention on AMI Crim. 2d 1004-A, a completely new instruction that was
adopted in 2013 after his trial. This new instruction is to be given in conjunction with AMI
Crim. 2d 1004, the primary instruction on manslaughter, and it reads as follows:
The law provides that if a person commits the offense of murder, but does so
under the influence of extreme emotional disturbance for which there is
reasonable excuse, that person has committed the offense of manslaughter rather
than murder. You must determine reasonableness from the viewpoint of a
person in the defendant’s situation under the circumstances as he believed them
to be.
(Defendant), in asserting the defense of extreme emotional disturbance, is required
only to raise a reasonable doubt in your minds. Consequently, if you believe that
this defense has been shown to exist, or if the evidence leaves you with a
reasonable doubt as to his guilt of murder rather than manslaughter, you may
find him guilty only of manslaughter.
Whatever may be your finding as to this defense, you are reminded that the
State still has the burden of establishing the guilt of (defendant) upon the whole
case beyond a reasonable doubt.
(Emphasis supplied.)
Sims argues that his counsel was ineffective for not asking for an instruction that
contained the italicized language noted above and for not discussing it in closing argument.
We cannot agree. In determining whether trial counsel’s conduct is ineffective, the conduct
is evaluated from counsel’s perspective at the time of trial. Strickland, supra. The instruction
that was given at trial complied with this court’s ruling in Fincham. Although the new
instruction, AMI Crim. 2d 1004-A, is a product of Fincham, the language Sims now desires
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was not dictated by that decision. We simply cannot say that counsel was ineffective for not
having the foresight to predict all revisions to the instructions that were not directly mandated
by our decision. Consequently, we affirm on this point.
B. Reckless Manslaughter
Here, Sims contends that counsel was ineffective because he did not seek an instruction
on the lesser-included offense of manslaughter that is committed when a person recklessly
causes the death of another person. See Ark. Code Ann. § 5-10-104(a)(3). This argument
is without merit based on our well-established “skip rule,” which provides that when an
instruction on a lesser-included offense has been given, and the jury convicts of the greater
offense, error resulting from the failure to give an instruction on another still lesser-included
offense is cured. Davis v. State, 2009 Ark. 478, 348 S.W.3d 553. The jury in Sims’s trial
received instructions on first-degree murder and the lesser-included offense of second-degree
murder. Because the jury returned a guilty verdict on the greater offense of first-degree
murder, Sims cannot establish that prejudice resulted from counsel’s failure to request an
instruction on yet another lesser-included offense. Kennedy v. State, 338 Ark. 125, 991
S.W.2d 606 (1999).
To the extent that Sims’s argument includes the contention that trial counsel should
have pursued an instruction pursuant to Arkansas Code Annotated section 5-2-614(a) (Repl.
2013), the “imperfect-defense statute,” we note that the circuit court did not provide a ruling
on this argument. It is the obligation of an appellant to obtain a ruling from the circuit court
in order to preserve an issue for appellate review. Kelley v. State, 2011 Ark. 175 (per curiam);
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McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam); Beshears v. State, 340 Ark. 70,
8 S.W.3d 32 (2000). Arkansas’s rules of procedure provide an avenue for an appellant to
obtain a ruling from the circuit court should the court fail to rule on an issue in its initial
order. Ark. R. Crim. P. 37.3 (2009); Beshears, supra. Sims did not avail himself of that
procedure. Therefore, the failure to obtain a ruling precludes our review of this argument
on appeal. Huddleston v. State, 347 Ark. 226, 61 S.W.3d 163 (2001).
C. Justification and Lesser-Included Offenses
In this argument, Sims asserts that his counsel rendered deficient performance for not
requesting a justification instruction with regard to the charges of second-degree battery and
aggravated assault. To show prejudice under Strickland based on trial counsel’s failure to
request a specific instruction, the United States Supreme Court has held that an appellant must
establish that it was “reasonably likely that the instruction would have made any difference
[in the outcome of the trial] in light of all the other evidence of guilt.” Berghuis v. Thompkins,
560 U.S. 370, 390 (2010). In this case, the jury rejected Sims’s claim of self-defense.
Therefore, it is highly unlikely and most improbable that the outcome of the trial would have
been different had counsel requested a justification instruction with respect to those offenses.
Because Sims has failed to demonstrate prejudice flowing from this allegation, the circuit
court’s decision on this matter is not clearly erroneous.
Sims also argues that counsel was ineffective for not seeking lesser-included-offense
instructions with respect to aggravated assault and second-degree battery. Our law is settled
that once an offense is determined to be a lesser-included offense, the circuit court is obligated
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to instruct the jury on that offense only if there is a rational basis for a verdict acquitting the
defendant of the offense charged and convicting him of the lesser-included offense. Webb v.
State, 2012 Ark. 64. With regard to aggravated assault, trial counsel was not remiss for failing
to seek a lesser-included-offense instruction because Sims’s defense to that charge was
complete denial. Where the evidence clearly shows that the defendant is either guilty of the
greater offense charged or innocent, there is no rational basis for giving an instruction on
lesser-included offenses. Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000); Brown v. State,
321 Ark. 413, 903 S.W.2d 160 (1995); Watson v. State, 308 Ark. 444, 825 S.W.2d 569 (1992).
As for a lesser-included-offense instruction on the charge of second-degree battery,
Sims’s brief merely recites the conclusory allegation that counsel’s failure to request such an
instruction was ineffective assistance. However, he does not cite authority in support of that
argument, nor does he otherwise develop the issue by referring to any facts contained in the
record that would provide a rational basis for an instruction. Sims had the burden of
demonstrating that there was a rational basis for the instruction. Mathis v. State, 2014 Ark.
148 (per curiam); Davis v. State, 2011 Ark. 433 (per curiam). This court does not research
or develop arguments for appellants. Hester v. State, 362 Ark. 373, 208 S.W.3d 747 (2005).
Bare assertions of ineffectiveness are not enough. Mitchell v. State, 2012 Ark. 242. Conclusory
statements that counsel was ineffective will not sustain a Rule 37 petition. Anderson v. State,
2011 Ark. 488, 385 S.W.3d 783. Accordingly, we find no merit here.
D. Defense of a Third Party
As his next point on appeal, Sims complains that, although he received an instruction
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on self-defense for defending himself, he contends that counsel neglected to include a
justification instruction for the defense of a third party, namely his wife. Sims asserts that he
would have been entitled to such an instruction based on his testimony that he feared not only
for his own life but also for that of his wife, who was sitting in the car. Once again, we must
observe that the jury did not accept his theory of self-defense. Therefore, it is improbable and
most unlikely that the jury would have believed that he was acting in defense of his wife.
Thus, Sims has failed to show a reasonable likelihood that the outcome of trial would have
been different had this instruction been given.
IV. Evidentiary Matters
Sims’s final three arguments concern claims of ineffectiveness with regard to
evidentiary issues. We also discuss these points in turn.
A. Evidence of the Deceased’s Violent Character
Sims contends that his trial counsel’s performance was deficient because he failed to
present evidence of the deceased’s character for violence. In making this argument, he states
that Robert had been previously convicted of third-degree domestic battery.
Where it is asserted that counsel was ineffective 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 that is meritless is not ineffective
assistance of counsel. Mitchell, supra. Our law is clear that specific instances of a victim’s
violent character are admissible only when the acts were directed at the defendant or within
his knowledge. Anderson v. State, 354 Ark. 102, 118 S.W.3d 574 (2003); Allen v. State, 2013
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Ark. 396; Thompson v. State, 306 Ark. 193, 813 S.W.2d 249 (1991); Halfacre v. State, 277 Ark.
168, 639 S.W.2d 734 (1982). Here, Sims did not know Robert. Therefore, the testimony
was not admissible, and counsel’s failure to offer this evidence did not fall below an objective
standard of reasonableness.
Alternatively, Sims asserts that, even if the evidence was not initially admissible, the
State opened the door for the admission of the testimony when the prosecution elicited
testimony from Rodney that Robert was a “big teddy bear.” Thus, he contends that his
counsel was ineffective for not seizing on the opportunity to admit evidence of Robert’s
violent nature. The record does not support this contention. Rodney testified that he knew
of Robert as the bartender’s friend but that he did not know Robert, or even his name. More
to the point, the prosecutor did not question Rodney about Robert’s character. Instead, the
prosecutor asked Rodney to describe Robert’s demeanor when Robert escorted Charleena
to her car. Rodney responded, “[L]ike maybe a big teddy bear. Just, you know, everything
sweet and nice and stuff like that.” This testimony merely described Robert’s demeanor and
thus did not place Robert’s character in issue. Because the prosecution did not open the
door, counsel was not remiss for not offering character evidence.
B. References to the Deceased’s Son
Next, Sims contends that he received ineffective assistance when trial counsel failed to
seek an admonition or to move for a mistrial when Rodney testified that, as he and his wife
were tending to Robert’s wounds, Robert said to them, “You know, I have a son, and I want
you to tell my son that I love him.” Sims points out that Tina gave similar testimony without
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objection and that the prosecutor referred to the testimony in closing argument.
The record reflects that Sims’s trial counsel opposed the introduction of statements
made by Robert to others after he had been stabbed, and the circuit court overruled Sims’s
objections. The record also shows that, although counsel maintained a standing objection to
Robert’s remarks, counsel raised a specific objection to Rodney’s testimony concerning
Robert’s son. In denying Sims’s petition for postconviction relief, the circuit court found
that, although a request for an admonition might have been successful, counsel’s choice not
to request an admonition was a matter of trial strategy based on the desire not to call further
attention to the comment. The circuit court also found that the decision not to request a
mistrial was also a matter of trial tactics and strategy. Further, the court determined that
“considering the prompt objection, the extraordinary nature of mistrials, and the possibility
that failure would have drawn further attention to the statement, the court is not prepared to
say that the choice not to move for a mistrial was ineffective assistance of counsel.”
We have said many times that the decision not to request an admonition is largely a
matter of trial strategy. Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001); Buckley v. State,
341 Ark. 864, 20 S.W.3d 331 (2000); Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998)
(per curiam). Matters of trial strategy and tactics, even if arguably improvident, fall within the
realm of counsel’s professional judgment and are not grounds for a finding of ineffective
assistance of counsel. Mister v. State, 2014 Ark. 446; Noel v. State, 342 Ark. 35, 26 S.W.3d
123 (2000). Under the circumstances here, the trial court was not clearly erroneous in finding
that the decision was one of trial strategy, or in finding that the decision not to call further
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attention to the remark by seeking an admonition was supported by reasonable professional
judgment. Moreover, Sims has not shown that the strategy was outside the bounds of
reasonable professional judgment or that there was a ground for a mistrial, which is an
extreme and drastic remedy to be resorted to only when there has been an error so prejudicial
that justice cannot be served by continuing the trial. Ellis v. State, 2014 Ark. 24 (per curiam)
(citing Green v. State, 2013 Ark. 497, 430 S.W.3d 729). In fact, Sims offers no argument that
the testimony was even inadmissible. Once again, we must observe that we do not research
or develop arguments on behalf of an appellant. Hester, supra.
C. Medical Examiner
As his last claim regarding his trial counsel, Sims argues that counsel’s performance was
deficient because he failed to confront the medical examiner with differences in his testimony
from the first to the second trial. Specifically, he contends that the medical examiner, when
considering the pathway of the wounds, appeared to be more certain that the stab wounds
were inflicted in a manner consistent with the testimony of the State’s witnesses than the
testimony of Sims. In denying this claim, the circuit court found that the substance of the
medical examiner’s testimony did not differ because he testified on both occasions that he
could not say with complete certainty that the wounds were inflicted in the manner alleged
by either party. We cannot say that the circuit court’s finding is clearly erroneous. In so
holding, we observe that trial counsel elicited from the medical examiner on cross-
examination that he did not know where appellant was positioned when he stabbed the
victim and that both the State’s theory and the defense’s theory were possible. There is
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simply no merit to this point.
V. Hearing
Sims also argues that the circuit court erred by not holding an evidentiary hearing on
his petition. We disagree. Pursuant to Arkansas Rule of Criminal Procedure 37.3(a), the
circuit court has the discretion to deny relief without a hearing. Stated differently, “the circuit
court need not hold an evidentiary hearing where it can be conclusively shown on the record,
or the face of the petition itself, that the allegations have no merit.” Mancia v. State, 2015 Ark.
115, at 25, 459 S.W.3d 259, 275 (quoting Bienemy v. State, 2011 Ark. 320, at 5). As indicated
by our discussions of the issues, the files and records of this case conclusively show that Sims’s
allegations that he received ineffective assistance of counsel are not well taken. Therefore, we
affirm the circuit court’s denial of the petition without a hearing.
Affirmed.
Jeff Rosenzweig, for appellant.
Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.
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