Bohanon v. State

2021 Ark. App. 296

624 S.W.3d 731

Jermaine BOHANON, Appellant

v.STATE of Arkansas, Appellee

No. CR-20-636

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered June 2, 2021

Jermaine Bohanon, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Michael L. Yarbrough, Ass't Att'y Gen., for appellee.

LARRY D. VAUGHT, Judge

Jermaine Bohanon appeals from the Crittenden County Circuit Court's denial of his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2020). We affirm.

On December 22, 2014, Bohanon pled guilty in the Crittenden County Circuit Court, case No. 18CR-14-897, to possession of a controlled substance, a Class C felony, and furnishing, possessing, or using prohibited articles, a Class B felony. He was sentenced to six years’ imprisonment in the Arkansas Department of Correction (ADC) and seventy-two months’ suspended imposition of sentence (SIS).

On April 19, 2018, Bohanon was arrested following a traffic stop in which officers found sixty-seven grams of marijuana, twelve grams of powder cocaine, less than two grams of rock cocaine, eight codeine pills, eight cyclobenzaprine pills, a black .44 magnum handgun, digital scales, his driver's license, and his Social Security card in a backpack that was located under his legs in the vehicle when it was pulled over. On April 1, 2019, the State filed a petition to revoke Bohanon's SIS, alleging that he had violated the terms and conditions of his SIS by failing to pay fines, costs, restitution, and fees and by failing to live a law-abiding life as evidenced by the April 19 arrest. The circuit court held a revocation hearing on April 2, 2019, during which it found that Bohanon had violated the terms of his SIS by committing new crimes. He was sentenced to 180 months’ incarceration. He appealed, and his appointed counsel filed a no-merit brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirmed the revocation of his SIS on January 15, 2020, in Bohanon v. State , 2020 Ark. App. 22, 594 S.W.3d 92.

On February 28, 2020, Bohanon filed in the circuit court a petition for postconviction relief pursuant to Rule 37.1. In his petition, he alleged four instances of ineffective assistance of counsel: (1) counsel failed to move for dismissal of the revocation hearing because it was held more than sixty days after the date of his arrest; (2) counsel failed to object to improper notice of the revocation hearing; (3) counsel failed to proffer excluded evidence; and (4) counsel failed to assert Bohanon's right to allocution before sentencing. The circuit court denied his petition without a hearing in an order issued on May 26. This appeal follows.

We will not reverse a circuit court's decision denying postconviction relief unless the circuit court's findings are clearly erroneous. King v. State , 2018 Ark. App. 605, at 5, 566 S.W.3d 165, 168. To prove ineffective assistance of counsel, the petitioner must show that counsel's performance was deficient, meaning counsel's performance fell below an objective standard of reasonableness, and that the deficiency prejudiced the defense. Jamett v. State , 2010 Ark. 28, at 3–4, 358 S.W.3d 874, 876–77 (per curiam).

Bohanon's first argument on appeal is that his revocation hearing was not held within sixty days after his arrest, in violation of Arkansas Code Annotated section 16-93-307 (Repl. 2016). While his petition for postconviction relief presented this argument as a matter of ineffective assistance of counsel, on appeal Bohanon never mentions ineffective assistance when arguing for reversal based on the statute's sixty-day requirement. Instead of applying the appropriate tests and standards for analyzing a claim of ineffective assistance, Bohanon's brief simply asserts that his hearing was held more than sixty days after he was arrested on the new charges. While such an argument may be appropriate for direct appeal, it is not cognizable as a basis for postconviction relief under Rule 37. Ortega v. State , 2017 Ark. 365, at 2, 533 S.W.3d 68, 71 ("Assertions of trial-court error, even those of constitutional dimension, must be raised at trial and on direct appeal."). By converting his argument from one of ineffective assistance of counsel to a direct challenge to the timeliness of his hearing, Bohanon has abandoned his ineffective-assistance argument.

Moreover, because he failed to address the elements necessary for demonstrating ineffective assistance, Bohanon has not presented a persuasive argument that would warrant reversal. Effectiveness of counsel is assessed under the standard set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland , 466 U.S. at 686, 104 S.Ct. 2052. There is a strong presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance, and the petitioner has the burden of overcoming this presumption. Hayes v. State , 2011 Ark. 327, at 2, 383 S.W.3d 824, 827. The petitioner must then demonstrate that counsel's deficient performance prejudiced his defense, such that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Id.

The Arkansas Supreme Court has held that "t...