Avery v. State

2022 Ark. App. 248

645 S.W.3d 374

Jeremy Andrew AVERY, Appellant

v.STATE of Arkansas, Appellee

No. CR-21-82

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered May 25, 2022

Jeremy A. Avery, Sr., pro se appellant.

Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Sr. Ass't Att'y Gen., for appellee.

ROBERT J. GLADWIN, Judge

Appellant Jeremy Avery appeals the Garland County Circuit Court's order denying his petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2022). Avery argues seven points on appeal that his trial counsel was ineffective and that the circuit court erred in its rulings. We affirm the circuit court's denial of Avery's petition for postconviction relief.

I. Procedural History

A. Direct Appeal

On April 18, 2018, Avery was convicted of two counts of aggravated robbery and sentenced to an aggregate prison term of fifty years in the Arkansas Division of Correction. These charges originated from two aggravated robberies: the first occurred on March 13, 2016, at the Subway Sandwich Shop located on Park Avenue in Hot Springs; and the second took place on March 26, 2016, at the Sonic Drive-In located on Westwego Road, in Hot Springs. In each, Avery brandished a gun, demanded money, and took approximately $470.

This court affirmed Avery's convictions in an opinion issued on September 25, 2019. See Avery v. State , 2019 Ark. App. 405, 585 S.W.3d 742. Specifically, we held that Avery had failed to preserve his challenge to the sufficiency of the evidence and that the circuit court committed no abuse of discretion in allowing Officer A.J. Tart to testify that he could identify Avery's voice because it was shown that Officer Tart had a reliable basis for his identification. The mandate from that appeal was filed on October 24, 2019.

B. Rule 37 Petition

On the sixtieth day following the mandate, Avery filed his initial pro se Rule 37 petition for relief on December 23, 2019, with the Garland County Circuit Court, which alleged numerous errors by trial counsel and contained a proper verification. This court dismissed the petition without prejudice on January 3, 2020, because it failed to conform to the statutory rules for a Rule 37 petition. He filed another Rule 37 petition January 17, alleging the following claims against trial counsel:

1. Failure to investigate—generally;

2. Failure to move for suppression of evidence;

3. Failure to properly impeach witnesses;

4. Failure to object regarding privilege against self-incrimination; and

5. Sentencing ineffectiveness as well as miscellaneous appellate ineffectiveness.

The State filed a motion to dismiss and response to the petition on February 5, alleging that because it was filed after the sixty-day deadline following the mandate, it should be dismissed. On September 17, 2020, without holding a hearing, the circuit court entered a five-page order denying the State's motion to dismiss because it had dismissed Avery's initial Rule 37 petition without prejudice, and he had filed his current Rule 37 petition within a short time in proper form, and denying Avery Rule 37 relief.

In its order, the circuit court denied relief on Avery's first claim, that trial counsel was ineffective for failing to investigate generally , noting that Avery has the burden of pleading sufficient facts to support the grounds for postconviction relief, all of which must be set forth in the body of the petition, such that it can determine whether to deny the petition without an evidentiary hearing or to set an evidentiary hearing. The circuit court explained that in order to merit postconviction relief, a petitioner bears the heavy burden of supporting his allegations with facts that establish the defense suffered actual prejudice and that the facts must affirmatively support the petitioner's claims of actual prejudice.

The circuit court found that Avery presented no facts or evidence to support this claim that his counsel failed to investigate his case. In support of that finding, the circuit court referenced the testimony of eyewitnesses to each of the aggravated robberies; that both incidents were captured on video that were played for the jury; and that there was a multitude of corroborating physical and digital evidence introduced by the State. The circuit court noted that the defense strategy presented to the jury was that another person committed the crimes. James Sharp, an individual serving a life sentence, testified that he was the person who committed the crimes using Avery's cell phone, vehicle, and other belongings. This evidence was rebutted by the State. The jury had the opportunity to decide if Avery fit the description given by witnesses of the robbery and whether he was physically in two places at once.

The circuit court found that there was no need for a hearing regarding Avery's first claim because he failed to meet his heavy burden of demonstrating specifically what additional preparation or further investigation would have shown and a reasonable probability that it would have changed the outcome of the trial.

Next, the circuit court rejected Avery's second claim, that trial counsel was ineffective for failure to move for suppression of evidence , finding this claim unsupported by facts or evidence that would have merited a motion to suppress evidence. Avery was properly mirandized prior to giving a statement and signed the Garland County Sheriff's standard Miranda form prior to giving his voluntary statement.

The circuit court found that any challenge by Avery's counsel would have been meritless, noting that defense counsel is not ineffective if counsel fails to make meritless claims on behalf of the client. The court stated that Avery failed to present any evidence the outcome of his trial would have been different had his counsel pursued meritless claims. The circuit court further found that Avery failed to present what prior bad acts his counsel should have moved to suppress in the sentencing phase or on what grounds these would have been suppressed and noted that previous criminal history is relevant and admissible in a sentencing hearing.

The circuit court found that there was no need for a hearing regarding Avery's second claim because he failed to provide the court with evidence demonstrating how the outcome of the trial would have been different had his counsel filed these motions on Avery's behalf. He failed to meet his heavy burden of demonstrating a reasonable probability that a motion to suppress his statement or evidence of his prior bad acts or criminal history would have changed the outcome of the trial.

The circuit court also denied Avery's third claim, that trial counsel was ineffective for failing to properly impeach witnesses. The circuit court found that Avery failed to provide facts showing that sheriff's deputies or other witnesses provided inconsistent statements during the trial. Because Avery failed to support his mere accusations of inconsistent statements and how counsel's alleged failure to point these out caused him actual prejudice in the outcome of his case, the circuit court found there was no need for a hearing on this allegation.

The circuit court next considered Avery's fourth claim, that trial counsel was ineffective for failing to object regarding privilege against self-incrimination. The circuit court found there was no need for a hearing on this allegation because Avery failed to specify which statements or items his defense counsel should have challenged or on what grounds. The circuit court found that he failed to state a factual basis for a challenge to venue or for why the judge should recuse herself from the case. Defense counsel participated in jury selection, and Avery presented no evidence to show the strikes made by counsel were inappropriate or against the adopted trial strategy. Accordingly, the circuit court found that Avery failed to show anything that would demonstrate a different outcome at trial had his counsel made these frivolous motions.

Next, the circuit court rejected Avery's fifth claim, that trial counsel was ineffective during sentencing as well as miscellaneous appellate ineffectiveness. The circuit court found that there was no need for a hearing to be conducted on Avery's claim because he failed to present any points that his trial counsel should have argued or, if he failed to reserve an argument he did make, that it would have resulted in a different outcome in his case.

Avery filed both a motion for reconsideration of this Rule 37 petition and a notice of appeal on October 28, 2020. On November 5, the State filed a response to Avery's motion for reconsideration, which was deemed denied because the circuit court took no action on it. This appeal followed.

II. Standard of Review and Applicable Law

Our supreme court reiterated the standard of review in postconviction-relief cases in Baumann v. State , 2021 Ark. App. 58, at 6–7, 2021 WL 479781 :

When reviewing a circuit court's ruling on a petitioner's request for Rule 37.5 relief, this court will not reverse the circuit court's decision granting or denying postconviction relief unless it is clearly erroneous. Kemp v. State , 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). 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. Id. , 60 S.W.3d at 406.

When considering an appeal from a circuit court's denial of postconviction relief on a claim of ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the Supreme Court of the United States in Strickland v. Washington , 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984), the circuit court clearly erred in holding that counsel's performance was not ineffective. Sparkman v. State , 373 Ark. 45, 281 S.W.3d 277 (2008). In making this

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