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SUPREME COURT OF ARKANSAS
No. CR-16-487
Opinion Delivered: February 9, 2017
CHRISTOPHER BEVERAGE
APPELLANT APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT
V. [NO. 35CR-10-83, 35CR-10-602,
35CR-11-423, 35CR-12-346]
STATE OF ARKANSAS
APPELLEE HONORABLE JODI RAINES
DENNIS, JUDGE
AFFIRMED.
SHAWN A. WOMACK, Associate Justice
Charles Beverage appeals from the Jefferson County Circuit Court’s order denying
his petition for postconviction relief due to ineffective assistance of counsel under Arkansas
Rule of Criminal Procedure 37.1 (2015). He filed his petition for relief after pleading guilty
to charges from several different cases including first-degree murder, aggravated robbery,
first-degree escape, second-degree battery, and theft of property. Beverage argues that,
because his counsel’s failure to request a competency hearing was both deficient and
prejudicial, the circuit court erred in denying his petition. For the reasons set out below,
we affirm the circuit court’s denial of Beverage’s petition.
I. Facts and Procedural History
Beverage and two other inmates escaped from a juvenile detention center in January
2010. During the escape, Beverage assaulted a guard and caused the officer’s fatal heart
attack. Beverage also assaulted additional employees and stole a vehicle in connection with
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the escape. The remainder of the charges stem from attacks on corrections officers while
Beverage was in custody.
Beverage’s trial counsel filed an initial motion for mental evaluation after Beverage
had been charged. The circuit court granted the motion. Dr. William Cochran evaluated
Beverage and determined that he was competent to stand trial. Upon receiving that report,
Beverage’s counsel filed a motion for a supplementary forensic evaluation. The circuit court
granted that motion as well. Ron Faupel, a psychologist, also concluded that Beverage was
fit to stand trial. Two months later, Dr. Jill Brush-Strode reached the same determination;
Beverage failed Dr. Brush-Strode’s competency test, but she concluded this was due to his
feigning a lack of understanding. Beverage’s counsel retained Dr. Albert Kittrell to testify
about Beverage’s chances for rehabilitation. Dr. Kittrell did not conduct his own evaluation
of Beverage’s fitness for trial, but he stated that he agreed with the prior evaluators’ reports.
Beverage pleaded guilty on September 7, 2012, and was sentenced to 600 months’
imprisonment. He filed his motion for postconviction relief on several grounds, including
the instant claim of ineffective assistance of counsel due to his counsel’s failure to request a
competency hearing. The circuit court denied the petition, and this court reversed and
remanded to the circuit court to conduct an evidentiary hearing in light of a gap in the
record. In addition to resolving that issue on remand, the circuit court heard testimony from
Beverage’s mother, who asserted that she had given trial counsel a cache of medical
documents that he did not review.
The circuit court again denied relief on Beverage’s petition. It explained that, in light
of the independent judgment of three medical professionals and the agreement of Beverage’s
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own witness that he was competent to stand trial, his trial counsel made a reasonable decision
not to pursue the competency question further, and that decision did not prejudice
Beverage.
II. Analysis
We review circuit court decisions on Rule 37 petitions for clear error. Adkins v.
State, 2015 Ark. 336, at 1, 469 S.W.3d 790, 794 (per curiam). A finding is clearly erroneous
when, although there is evidence to support it, the appellate court, after reviewing the
entirety of the evidence, is left with the definite and firm conviction that a mistake has been
committed. Id. This court has adopted the United States Supreme Court’s test from
Strickland v. Washington, 466 U.S. 668 (1984), to determine whether or not counsel was
ineffective. Taylor v. State, 2013 Ark. 146, at 5, 427 S.W.3d 29, 32. The Strickland test
requires both (1) that the petitioner’s counsel’s performance was deficient and (2) that the
petitioner was prejudiced by that deficient performance. Strain v. State, 2012 Ark. 42, at 2,
394 S.W.3d 294, 297 (per curiam).
Beverage’s arguments on appeal all concern his trial counsel’s failure to request a
competency hearing. In order to show that trial counsel’s failure to request a competency
hearing was deficient, Beverage must point to errors that are outside “the wide range of
reasonable professional assistance.” See, e.g., Russell v. State, 2016 Ark. 190, at 2, 490 S.W.3d
654, 658. In order to satisfy the second prong of Strickland, that he was prejudiced, Beverage
must demonstrate that there was a reasonable probability he would have been found
incompetent to plead guilty if the request had been made. See, e.g., Henson v. State, 2011
Ark. 375, at 3 (citing Jones v. State, 355 Ark. 316, 136 S.W.3d 774 (2003)).
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Failing either prong of Strickland is independently fatal to a Rule 37.1 petition. See,
e.g., Pennington v. State, 2013 Ark. 39, at 2 (per curiam). We see nothing to indicate that the
circuit court clearly erred in finding that Beverage was not prejudiced by his trial counsel’s
decision not to request a competency hearing. Beverage’s attorney moved for and received
an initial evaluation, a second opinion, and a third opinion from different medical
professionals on the issue of his client’s competency. A fourth medical professional—
Beverage’s own witness—agreed with the prior medical assessments that Beverage was
legally competent to stand trial and, consequently, to plead guilty. With three independent
evaluations yielding opinions that Beverage was competent, there is simply no plausible
contention that an additional hearing would have resulted in a ruling that he was
incompetent.
When a Rule 37.1 petitioner claims that trial counsel prejudiced the petitioner by
failing to press for an additional hearing or raise additional evidence on the issue of
competency, we have held that it is the burden of the petitioner to demonstrate that
“additional evidence would have negated findings already presented.” See Campbell v. State,
283 Ark. 12, 15, 670 S.W.2d 800, 802 (1984). For additional evidence of incompetence,
Beverage submits (1) stray comments from the same medical reports that ultimately
concluded he was competent and (2) the box—full, Beverage claims, of medical
documents—that Beverage’s mother had given trial counsel before Beverage entered his
plea. As with Campbell, it is the burden of the petitioner to “show how the evidence of his
prior history . . . would have negated the findings of the evaluation that had already been
presented.” Id. Because Beverage did not identify how any medical records would have
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overcome the independent determinations of his three medical evaluators, the circuit court
did not clearly err in determining Beverage was not prejudiced by his trial counsel’s decision
not to request a competency hearing.
III. Conclusion
Because Beverage failed to demonstrate that any deficiency by his trial counsel was
prejudicial to him, he did not satisfy the Strickland test for ineffective-assistance-of-counsel
claims under Rule 37.1 of the Arkansas Rules of Criminal Procedure. We hold that the
circuit court did not clearly err in denying his petition.
Affirmed.
James Law Firm, by: William O. “Bill” James, Jr., and Michael Kiel Kaiser, for appellant.
Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.
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