Beverage v. State

2015 Ark. 112, 458 S.W.3d 243, 2015 Ark. LEXIS 132
CourtSupreme Court of Arkansas
DecidedMarch 19, 2015
DocketCR-13-389
StatusPublished
Cited by23 cases

This text of 2015 Ark. 112 (Beverage v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beverage v. State, 2015 Ark. 112, 458 S.W.3d 243, 2015 Ark. LEXIS 132 (Ark. 2015).

Opinions

PAUL E. DANIELSON, Associate Justice

| Appellant Christopher Beverage appeals from the order of the Jefferson County Circuit Court denying his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2012). His sole point on appeal is that the circuit court erred in denying him a hearing on his petition. We affirm the circuit court’s order in part, and reverse and remand in part.

In 2012, Beverage entered a negotiated plea of guilty to murder in the first degree; aggravated robbery; theft of property greater than $25,000; first-degree escape; four counts of second-degree battery; and theft of property $500 or less. The charges stemmed from Beverage’s 2010 escape, along -with two others, from the Jack Jones Juvenilé Detention Center in Pine Bluff after his attack on a correctional officer and his subsequent attacks on ^correctional officers at another facility in 2010, 2011, and 2012. He was sentenced consecutively to 480 months’ imprisonment on the first-degree-murder charge plus 120 months on the aggravated-robbery charge, for a total time of imprisonment of 600 months.1

On December 4, 2012, Beverage filed his petition for postconviction relief pursuant to Rule 37.1. In his petition, he alleged that his defense counsel was ineffective in failing to (1) seek a change of venue, in light of the prejudicial publicity the escape received; (2) challenge determinations as to his competency to stand trial by seeking a hearing and engaging an expert opinion; (3) object to the sentence he received on the bases that it amounted to a sentence of life imprisonment and there was no evidence that he intended or attempted to kill; (4) adequately investigate the facts and proof so as to pursue a change in venue or speedy-trial motion; (5) adequately investigate so as to subject the State’s evidence to meaningful adversarial testing, including the failure to challenge the autopsy of the murder victim; and (6) take the matter to trial.

As already noted, the circuit court denied Beverage’s petition without a hearing. In its order, the circuit court found that because Beverage pleaded guilty and did not have a jury trial, he could not argue that he was prejudiced by a tainted jury. With respect to Beverage’s claims regarding his competency, the circuit court observed that Beverage’s record revealed two forensic examinations and that Beverage had failed to provide any evidence that a third evaluation would have resulted in a different finding from the other two. It further noted its preview of the plea-hearing transcript, which the circuit court found to contradict Beverage’s allegation that he was not competent when he entered his negotiated plea of guilty. In addition, the circuit court found that Beverage’s right to speedy trial was not denied in light of an excludable period; therefore, the circuit court concluded, any failure by defense counsel to make a merit-less speedy-trial motion did not constitute ineffective assistance of counsel. Finally, the circuit court ruled, Beverage’s claim that his defense counsel was ineffective for failing to challenge the results of the murder-victim’s autopsy was a challenge to the sufficiency of the evidence that was not a cognizable Rule 37 claim. Beverage now appeals the circuit court’s order.

On appeal, Beverage argues that he was entitled to a hearing on his petition. Specifically, he contends that the circuit court erred in not granting him a hearing on his claims that his counsel (1) failed to obtain another mental-health evaluation or otherwise demonstrate his incompetence and (2) failed to explore the murder victim’s cause of death.2 The State counters that there was no error by the circuit court because Beverage did not allege in his petition, as he was required to do, that but for his defense counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Alternatively, the State avers, Beverage’s claims of ineffective assistance of counsel lack merit, and therefore, the circuit court did not err in denying the petition without a hearing.

|4It is well settled that this court does not reverse the denial of postconviction relief unless the circuit court’s findings are clearly erroneous. See Sales v. State, 2014 Ark. 384, 441 S.W.3d 883. 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. See id. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. See id.

The criteria for assessing the effectiveness of counsel were enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In asserting ineffective assistance of counsel under Strickland, the petitioner must first show that counsel’s performance was deficient. McDaniels v. State, 2014 Ark. 181, 432 S.W.3d 644. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. See id. The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. See id. Second, the petitioner must show that counsel’s deficient performance- prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. See id, In doing so, the petitioner must show that there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, which means that the decision reached would have been different absent the errors. See id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. See id. Unless a petitioner |smakes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. See id.

Beverage’s sole contention on appeal is that the circuit court erred in denying his Rule 37 petition without holding an evidentiary hearing. Rule 37.3 of the Arkansas Rules of Criminal Procedure requires an evidentiary hearing in a postcon-viction proceeding unless the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief. See Lacy v. State, 2013 Ark. 34, 425 S.W.3d 746. If the files and the record conclusively show that the petitioner is not entitled to relief, the circuit court is required to make written findings to that effect, “specifying any parts of the files, or records that are relied upon to sustain the court’s findings.” Ark.R.Crim. P. 37.3(a) (2012). Where, as here, a defendant pleads guilty, the only claims cognizable in a proceeding pursuant to Rule 37.1 are those that allege that the plea was not made voluntarily and intelligently or that it was entered without effective assistance of counsel. See Scott v. State, 2012 Ark. 199, 406 S.W.3d 1.

In the instant case, the circuit court made the required findings; however, we cannot say that the findings and record conclusively show that Beverage is entitled to no relief on the first of his two claims.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kenneth Miller v. State of Arkansas
2020 Ark. App. 270 (Court of Appeals of Arkansas, 2020)
Williams v. State
2019 Ark. 129 (Supreme Court of Arkansas, 2019)
Hall v. State
558 S.W.3d 867 (Supreme Court of Arkansas, 2018)
Smith v. State
2017 Ark. 236 (Supreme Court of Arkansas, 2017)
Matthews v. State
2016 Ark. 447 (Supreme Court of Arkansas, 2016)
Horton v. State
2016 Ark. 424 (Supreme Court of Arkansas, 2016)
Berks v. State
2016 Ark. 364 (Supreme Court of Arkansas, 2016)
Van Winkle v. State
2016 Ark. 98 (Supreme Court of Arkansas, 2016)
Sandrelli v. State
2016 Ark. 103 (Supreme Court of Arkansas, 2016)
Oliver v. State
2016 Ark. 78 (Supreme Court of Arkansas, 2016)
Engstrom v. State
2016 Ark. 45 (Supreme Court of Arkansas, 2016)
Wood v. State
2015 Ark. 477 (Supreme Court of Arkansas, 2015)
Brown v. State
2015 Ark. 435 (Supreme Court of Arkansas, 2015)
Perrian v. State
2015 Ark. 424 (Supreme Court of Arkansas, 2015)
Swift v. State
2015 Ark. 381 (Supreme Court of Arkansas, 2015)
Henson v. State
2015 Ark. 302 (Supreme Court of Arkansas, 2015)
Hooks v. State
2015 Ark. 258 (Supreme Court of Arkansas, 2015)
Stalnaker v. State
2015 Ark. 250 (Supreme Court of Arkansas, 2015)
Culbertson v. State
2015 Ark. 248 (Supreme Court of Arkansas, 2015)
Beverage v. State
2015 Ark. 112 (Supreme Court of Arkansas, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
2015 Ark. 112, 458 S.W.3d 243, 2015 Ark. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beverage-v-state-ark-2015.