Smith v. State

2015 Ark. 165

459 S.W.3d 806

Roy Smith, Appellant

v.State of Arkansas, Appellee.

No. CR–12–487

Supreme Court of Arkansas.

Opinion Delivered April 16, 2015

Ronald L. Davis, Jr. Law Firm, PLLC, Little Rock, by: Ronald L. Davis, Jr., for appellant.

Dustin McDaniel, Att'y Gen., by: Lauren Elizabeth Heil, Ass't Att'y Gen., for appellee.

Opinion

KAREN R. BAKER, Associate Justice

This case involves an appeal from a denied petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1. Appeals from denied Rule 37 petitions are assigned to this court by the text of the Rule itself. See Ark. R. Crim. P. 37.3(b) (“If a petition on which the petitioner was represented by counsel is denied, counsel shall continue to represent the petitioner for an appeal to the Supreme Court, unless relieved as counsel by the circuit court or the Supreme Court.”). For reversal, appellant Roy Smith contends that the circuit court erred in finding that his trial counsel was not ineffective for (1) refusing to strike a juror after being told that the juror was an acquaintance of Smith's sister and did not like Smith; (2) failing to properly move for a continuance because of an absent witness; and (3) failing to object to the legality of the search of Smith's home despite being advised that the officers executing the search did not knock and announce prior to entering and executed the search prior to 6:00 a.m. We find no error and affirm.

An Arkansas County Circuit Court jury found Smith guilty of possession of cocaine with intent to deliver, possession of marijuana with intent to deliver, and unauthorized use of property to facilitate a crime. An order reflecting those verdicts was entered on June 17, 2009. On that same date, the jury recommended sentences of eighty years imprisonment for the possession-of-cocaine charge, thirty years' imprisonment and a $10,000 fine for the possession-of-marijuana charge, and forty years' imprisonment and a $15,000 fine for the unauthorized-use-of-property charge. The circuit court ordered that the jury sentences run consecutively, followed by an additional ten years' imprisonment pursuant to Arkansas Code Annotated section 5–64–411, resulting in a total sentence of 160 years' imprisonment and a $25,000 fine. The circuit court took into account Smith's “possession of more than One Hundred (100) grams of cocaine as well as [Smith]'s previous record consisting of Twelve (12) felony convictions, Four (4) of which involve either Possession of Cocaine with Intent to Deliver or Delivery of Cocaine,” in determining the appropriate sentence.

Smith appealed his conviction and challenged the sufficiency of the evidence to support the convictions for possession of cocaine with intent to deliver and unauthorized use of property to facilitate a crime. He also appealed the denial of his motions to suppress the fruits of a search and for a continuance. The court of appeals affirmed on February 9, 2011. Smith v. State, 2011 Ark. App. 110, 381 S.W.3d 144. On May 2, 2011, Smith filed a “Petition for New Trial,” requesting that the circuit court set aside his judgment and conviction and order a new trial pursuant to Rule 37.1.¹

In his Rule 37 petition, Smith contended that his trial counsel was ineffective for refusing to strike a juror after being told that the juror was an acquaintance of Smith's sister and did not like Smith; failing to make any argument as to the sufficiency of the evidence on the unauthorized-use-of-property charge; failing to properly move for a continuance because of an absent witness; and failing to object to the legality of the search of Smith's home despite being advised that the officers executing the search did not knock and announce prior to entering and executed the search prior to 6:00 a.m.

On August 22, 2011, the circuit court held an evidentiary hearing on Smith's Rule 37 petition. Smith was represented by counsel at the hearing. In a written order filed on September 2, 2011, the circuit court denied Smith's petition and request for a new trial and determined that Smith had not established that his trial counsel was ineffective. No notice of appeal was filed from that order.

On June 13, 2012, Smith filed a pro se motion for belated appeal with this court. We remanded to the circuit court for an evidentiary hearing on the issue of whether Smith timely informed his counsel of his desire to appeal from the order denying his Rule 37 petition. This court directed the circuit court to “enter Findings of Fact and Conclusions of Law within ninety days of the date of this opinion and submit the findings and conclusions to this court with the transcript of the evidentiary hearing.” Smith v. State, (Smith II ) 2012 Ark. 331, at 2, 2012 WL 4017372 (per curiam). Upon remand, the circuit court found that smith had sufficiently informed counsel of his desire to appeal from the Rule 37.1 order and that counsel was obligated to file a notice of appeal from the Rule 37.1 order. Smith v. State, (Smith III ) 2013 Ark. 166, at 3–4, 2013 WL 1694911 (per curiam). This court accepted the circuit court's findings and granted Smith's pro se petition for belated appeal.

On April 15, 2014, Smith filed a second motion for belated appeal and petition for writ of certiorari to complete the record. In his motion, Smith contended that (1) the transcript from Smith's trial did not include a transcript of the jury selection; (2) the transcription of the oral motion for continuance and the hearing on Smith's motion to suppress were not made part of the record for the Rule 37 proceedings; and (3) the affidavit for search warrant, the warrant, and the motion to suppress were not part of the Rule 37 record. Thus, Smith requested that this court grant an additional thirty days to complete the record with these documents. On May 8, 2014, this court granted Smith's petition for writ of certiorari to complete the record and ordered that a supplemented record be filed. As Smith's appeal from the denial of his Rule 37 petition is now properly before this court, we turn to the merits.

We will reverse a trial court's decision granting or denying postconviction relief only when that decision is clearly erroneous. Pankau v. State, 2013 Ark. 162, 2013 WL 1694909 ; Banks v. State, 2013 Ark. 147, 2013 WL 1491272. 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 committed. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694.

In reviewing a claim of ineffective assistance of counsel, we consider the totality of the evidence. Keck v. State, 2012 Ark. 145, at 2, 2012 WL 1130588. Under our standard of review, we assess whether counsel's performance was effective under the two-prong standard that the Supreme Court of the United States articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove a claim of ineffective assistance of counsel, a petitioner must show (1) that “counsel's representation fell below an objective standard of reasonableness,” and (2) that counsel's particular errors “actually had an effect on the defense.” Lee v. State, 2009 Ark. 255, at 3, 308 S.W.3d 596, 600 (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052 ). The question in determining whether an attorney rendered constitutionally ineffective assistance of counsel is “whether the 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.” Id.

There is a strong presumption that the trial counsel's representation falls within the wide range of reasonable professional assistance. Id. To overcome the presumption, the petitioner must identify specific acts and omissions that, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Id. According to the second prong of the Strickland test, even if counsel's conduct is shown to be professionally unreasonable, the judgment will stand unless the petitioner can demonstrate that the error had an actual prejudicial effect on the outcome of the proceeding. Id. (citing Strickland, 466 U.S. at 691, 104 S.Ct. 2052 ). The petitioner must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 4, 308 S.W.3d at 601 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052 ). To prevail under Strickland, a claim of ineffective assistance of counsel must satisfy both prongs of the Strickland test. State v. Brown, 2009 Ark. 202, 307 S.W.3d 587 (per curiam).

Smith's first point on appeal is that the circuit court clearly erred by denying his motion for a new trial on the ground that his trial counsel was ineffective for failing to strike a juror, identified as Juror Lane, from the jury panel. Smith asserts that he urged his counsel to strike Lane because Lane “hung out with his sister,” “lived with a guy named Donald Banks,” and that “Banks and Smith had some issues with Dittrich, the prosecutor in [Smith's] case.” Smith further asserts that he told trial counsel that “Banks did not like him and that there was hostility between” the two men. During Smith's Rule 37 hearing, his trial counsel testified that he did not recall Smith advising him to strike Lane. Although trial counsel acknowledged that it was his general practice to follow a client's suggestions on such matters, he stated that the circumstances during jury selection might cause him to change his general practice. For example, trial counsel testified that “you may have to choose ... the least offensive or harmful of those jurors.” The circuit court concluded that Smith “did not establish how, in the entire context of the trial, the seating of juror Lane prejudiced him.” In addition, the circuit court determined that “matters of...