Ali v. State

1

2021 Ark.App. 482

OMAR ALI APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-21-77

Court of Appeals of Arkansas, Division I

December 8, 2021

APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT [NO. 30CR-18-153] HONORABLE CHRIS E WILLIAMS, JUDGE

Omar Ali, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

RAYMOND R. ABRAMSON, JUDGE

This is a pro se appeal from the denial of a petition filed pursuant to Arkansas Rule of Criminal Procedure 37 (2020). On January 29, 2021, the circuit court entered written findings related to the Rule 37 hearing. The circuit court organized Ali's allegations into seven categories: (1) the State offered a false promise of a plea agreement; (2) substitute trial counsel were not prepared for trial or were not competent (3) trial counsel was ineffective for failing to move to suppress; (4) trial counsel generally was ineffective; (5) trial counsel failed to move to continue or to substitute counsel; (6) trial counsel failed to object to the State referencing the drugs in an envelope without forcing the State to open the envelope; and (7) trial counsel failed to object to an allegedly tainted photograph. Ultimately, the circuit court denied each of the claims.

On appeal, Ali argues seven points. First, he claims that counsel were ineffective for failing to enter into a written agreement with the State to dismiss his charges. Second, he argues that counsel were ineffective for failing to provide him with a written copy of the ten-year guilty-plea offer. Third, he alleges that one of his attorneys, Phyllis Lemons was ineffective for withdrawing from the case without notifying him. Fourth, he claims that counsel were ineffective for failing to interview a witness. Fifth, he argues that counsel were ineffective for failing to inform him of the expiration date of the ten-year guilty-plea offer. Sixth, he claims that counsel were ineffective for failing to object to a photograph and to the drugs in the envelope. Finally, he alleges that counsel were ineffective for failing to enforce the plea agreement by filing a motion to dismiss. All of Ali's arguments are either not preserved or without merit. Accordingly, we affirm the circuit court's denial of relief.

This court affirmed Ali's conviction on direct appeal in Ali v. State, 2020 Ark.App. 429. Here is a brief recitation of the facts as outlined in that opinion. Ali was arrested on June 17, 2018, by a Malvern police officer pursuant to a probable-cause warrant during a traffic stop. Id. at 1. A search incident to arrest revealed a baggie on his person that contained suspected controlled substances. Id. Ali subsequently was charged with possession of seven grams of methamphetamine, possession of drug paraphernalia, and possession of cocaine as well as a habitual-offender enhancement for being a felon convicted of four or more felonies. Id.

At a pretrial hearing on August 14, 2018, the State advised the circuit court that it had received a letter from a woman later identified as Mary Katherine Davis, claiming that she left the drugs in Ali's vehicle. Id. at 2. The State also advised the circuit court that the claim needed further investigation. Id. at 3. While a specific agreement was not reached, the circuit court stated that its general understanding was that Ali would give a statement to the police that indicated that the drugs belonged to Davis, and in return, the State would dismiss the charges. Id. at 3-4. Subsequently, Ali gave a statement to the Hot Spring County Sheriff's office. Id. at 4.

On August 28, 2018, the State informed the circuit court that it was not going to dismiss the charges. Id. at 4-5. The State also told the circuit court that Ali had been given an offer totaling ten years' imprisonment for the possession-of-methamphetamine and possession-of-drug-paraphernalia charges. Id. at 5. The offer was not accepted at that time. Id. On March 15, 2019, just prior to the start of trial, the State amended the allegation of possession of seven grams of methamphetamine to possession of five grams and nolle prossed the possession-of-cocaine and drug-paraphernalia charges. Id. Ali argued that the State had agreed to dismiss the charges if he agreed to testify against Davis. Id. However, Ali's counsel conceded, "Now, it was not absolute on the record that that would happen. It was just that if upon further investigation by the Prosecution and by the police department that if the circumstances were as such then they could be dismissed. But there was no actual agreement." Id. Ali's counsel also acknowledged that, to the extent any agreement was made, it was a "conditional plea offer." Id. The circuit court also denied Ali's request to dismiss the case because the State had reviewed his statement and did not accept it as true. Id. Ali subsequently was found guilty of possession of five grams of methamphetamine and sentenced to twenty-seven years' imprisonment as a habitual offender. Id.

On direct appeal, this court found that there was no agreement that the State would dismiss the charges if Ali gave a written statement; rather, the State committed only to investigating the statements by Ali and Davis. Id. Thus, because there was not an agreement for the circuit court to enforce, the court did not err by denying Ali's request to require the State to dismiss the charges against him. Id.

On October 16, 2020, Ali filed a petition for postconviction relief pursuit to Rule 37 of the Arkansas Rules of Criminal Procedure. In the petition, Ali listed a plethora of claims for relief in paragraphs 9.A through 9.Z. On January 4, 2021, the Hot Spring County Circuit Court held a hearing via Zoom to take testimony relating to Ali's claims. Ali testified on his own behalf, and he called Debert Morgan, an inmate at the Grimes Unit, as a witness. Greg Crain, Philip Wilson, and Phyllis Lemons, Ali's trial attorneys, also testified at the postconviction hearing. At the end of the hearing, the circuit court ruled from the bench and denied Ali's claims. Ali timely filed a notice of appeal.

Our standard of review in Rule 37 cases is well settled. The appellate court does not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous or clearly against the preponderance of the evidence. E.g., Jackson v. State, 352 Ark. 359, 364, 105 S.W.3d 352, 356 (2003). A finding is clearly erroneous when, although there is evidence to support it, after reviewing the totality of the evidence, the appellate court is left with the definite and firm conviction that a mistake has been committed. E.g., Watson v. State, 2014 Ark. 203, at 2, 444 S.W.3d 835, 838. The burden is on the petitioner to prove his allegations for postconviction relief. E.g., Frazier v. State, 2016 Ark. 55, at 6, 482 S.W.3d 305, 311 (per curiam). In postconviction proceedings, it is up to the trier of fact to determine the value and weight to be given to the testimony of witnesses. E.g., State v. Lacy, 2016 Ark. 38, at 8, 480 S.W.3d 856, 861.

In reviewing a circuit court's denial of postconviction relief on an ineffective-assistance-of-counsel claim, the appellate court must determine, given the totality of the evidence under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), whether the circuit court clearly erred by holding that counsel's performance was not ineffective. E.g., Springs v. State, 2012 Ark. 87, at 3, 387 S.W.3d 143, 147. To prove counsel was ineffective, the petitioner must show that (1) counsel's conduct "fell below an objective standard of reasonableness . . . under prevailing professional norms" and (2) the "professionally unreasonable" conduct of counsel "prejudiced the defense." Strickland, 466 U.S. at 687-88, 691-92. Under the first prong of Strickland, a petitioner must demonstrate that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. E.g., Watson, 2014 Ark. 203, at 3, 444 S.W.3d at 839.

There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. E.g., id. A petitioner 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." Id.

"Judicial review of counsel's performance must be highly deferential, and a fair assessment of counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's conduct, and to evaluate the conduct from counsel's perspective at the time." Weatherford v. State, 363 Ark. 579, 583, 215 S.W.3d 642, 646-47 (2005). Matters of trial strategy are open to debate by experienced counsel and generally do not provide a basis for a finding of ineffective assistance. E.g., McDaniel v. State, 282 Ark. 170, 172, 666 S.W.2d 400, 401 (1984).

To show prejudice under the second prong of Strickland, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. E.g., Watson, 2014 Ark. 203, at 3-4, 444 S.W.3d at 839. Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. E.g. id. at 4, 444 S.W.3d at 839. "[T]here is no reason for a court deciding an ineffective assistance claim . . . to...