Cite as 2014 Ark. 74
SUPREME COURT OF ARKANSAS No. CR-12-741
KIRK JOHNSON Opinion Delivered February 20, 2014 APPELLANT APPEAL FROM THE JEFFERSON V. COUNTY CIRCUIT COURT [NO. CR-03-676-2-5]
STATE OF ARKANSAS HONORABLE JODI RAINES APPELLEE DENNIS, JUDGE
AFFIRMED.
COURTNEY HUDSON GOODSON, Associate Justice
Appellant Kirk Johnson appeals the order entered by the Jefferson County Circuit
Court denying his petition for postconviction relief pursuant to Rule 37.1 of the Arkansas
Rules of Criminal Procedure. For reversal, Johnson contends that the circuit court erred by
not finding that he received ineffective assistance of counsel upon the revocation of his
probation. We affirm.
As reflected by a judgment and disposition order entered on April 4, 2007, Johnson
pled guilty to charges of attempt to manufacture methamphetamine, possession of
methamphetamine, possession of marijuana, and the use of paraphernalia to manufacture
methamphetamine. Collectively, he received five years of supervised probation. The record
further reveals that the State filed a petition to revoke on September 7, 2007. In the petition,
the State alleged that Johnson had inexcusably violated the terms of his probation by failing
to report to his probation officer; by not paying probation-service fees and sheriff’s fees; by Cite as 2014 Ark. 74
not completing any community-service work; and by failing to attend substance-abuse
counseling. At a hearing convened on November 10, 2008, Johnson waived the right to a
revocation hearing and admitted that he had not abided by the terms of his probation. The
circuit court accepted Johnson’s plea that he had violated the conditions of probation, and the
court set a sentencing hearing for January 12, 2009. The court advised Johnson that a prison
sentence would be forthcoming if he did not bring himself into compliance by the January
2009 hearing. However, the circuit court postponed the sentencing hearing on multiple
occasions at Johnson’s request, and the hearing was not held until February 16, 2010. At the
sentencing hearing, the State presented testimony as to Johnson’s continued lack of
compliance with the terms of probation. Afterward, the circuit court entered a judgment and
commitment order sentencing him to ten years in the Arkansas Department of Correction.
Johnson appealed the revocation of his probation, arguing that the circuit court erred
by revoking his probation because he did not waive the sixty-day time limitation for
conducting the revocation hearing and because he did not receive notice of the grounds on
which the State was seeking revocation. The court of appeals affirmed on both points,
holding that neither issue had been preserved for appeal. Johnson v. State, 2011 Ark. App. 590.
Thereafter, Johnson filed a timely petition for postconviction relief in which he
asserted that his counsel was ineffective for not pursuing the argument that the sixty-day time
period for holding the revocation hearing had expired and for not asserting that he did not
receive adequate notice of the alleged probation violations. The circuit court denied the
petition without a hearing by entry of an order dated June 25, 2012. Johnson now appeals Cite as 2014 Ark. 74
the denial of postconviction relief.
For reversal, Johnson argues that the circuit court erred in finding that he did not
receive ineffective assistance of counsel on both grounds asserted in his petition. The criteria
for assessing the effectiveness of counsel were enunciated by the United States Supreme Court
in Strickland v. Washington, 466 U.S. 668 (1984). In asserting ineffective assistance of counsel
under Strickland, the petitioner must first show that counsel’s performance was deficient.
Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. There is a strong presumption that trial
counsel’s conduct falls within the wide range of professional assistance, and an appellant has
the burden of overcoming this presumption by identifying specific acts or omissions of trial
counsel, which, when viewed from counsel’s perspective at the time of the trial, could not
have been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181,
403 S.W.3d 55. 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. Mason v. State, 2013 Ark. 492, ___ S.W.3d ___. 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. White v. State, 2013
Ark. 171, ___ S.W.3d ___.
This court does not reverse a denial of postconviction relief unless the circuit court’s
findings are clearly erroneous. Davenport v. State, 2013 Ark. 508, ___ S.W.3d ___. A finding
is clearly erroneous when, although there is evidence to support it, after reviewing the entire
evidence, we are left with the definite and firm conviction that a mistake has been committed. Cite as 2014 Ark. 74
Adams v. State, 2013 Ark. 174, ___ S.W.3d ___.
As his first point on appeal, Johnson contends that the circuit court erred by not
finding that his counsel was ineffective for failing to raise the issue that the revocation hearing
had been held outside the sixty-day limitation set by statute. He claims that he was arrested
and served with the petition to revoke on July 2, 2008,1 and that the November 10, 2008
hearing was not held within sixty days following his arrest.
At the time of Johnson’s revocation, Arkansas Code Annotated section 5-4-310(b)(2)
(Repl. 2006) required revocation hearings to be held within sixty days of the defendant’s
arrest for the probation violation.2 In denying this claim of ineffective assistance of counsel,
the circuit court found that the sixty-day limitation period did not apply because Johnson was
released on bail pending the revocation hearing. The facts of this case and the law bear out
the circuit court’s conclusion. The record reveals that Johnson was released on a cash bond
on the date he was arrested on the revocation petition. This court has observed that the
purpose of the limitation period is to assure that a defendant is not detained in jail for an
unreasonable time awaiting his revocation hearing. Boone v. State, 270 Ark. 83, 603 S.W.2d
410 (1980). We have also held that the time limitation loses its meaning and is inapplicable
when the defendant is not incarcerated while awaiting his revocation hearing. Parks v. State,
1 The record reflects that Johnson was arrested on a bench warrant and was served with the petition to revoke on June 8, 2008. 2 The General Assembly repealed section 5-4-310 by Act 570, § 12 of 2011. The provisions of the former statute in revised form now appear at Arkansas Code Annotated section 16-93-307 (Supp. 2013). See Act 570, § 90 of 2011. Cite as 2014 Ark. 74
303 Ark. 208, 795 S.W.2d 49 (1990). Because Johnson was not incarcerated preceding the
revocation hearing, the limitations period did not apply. Consequently, the circuit court’s
finding that counsel was not ineffective is not clearly erroneous because, had counsel raised
the issue, the argument would not have been successful. See Camargo v.
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Cite as 2014 Ark. 74
SUPREME COURT OF ARKANSAS No. CR-12-741
KIRK JOHNSON Opinion Delivered February 20, 2014 APPELLANT APPEAL FROM THE JEFFERSON V. COUNTY CIRCUIT COURT [NO. CR-03-676-2-5]
STATE OF ARKANSAS HONORABLE JODI RAINES APPELLEE DENNIS, JUDGE
AFFIRMED.
COURTNEY HUDSON GOODSON, Associate Justice
Appellant Kirk Johnson appeals the order entered by the Jefferson County Circuit
Court denying his petition for postconviction relief pursuant to Rule 37.1 of the Arkansas
Rules of Criminal Procedure. For reversal, Johnson contends that the circuit court erred by
not finding that he received ineffective assistance of counsel upon the revocation of his
probation. We affirm.
As reflected by a judgment and disposition order entered on April 4, 2007, Johnson
pled guilty to charges of attempt to manufacture methamphetamine, possession of
methamphetamine, possession of marijuana, and the use of paraphernalia to manufacture
methamphetamine. Collectively, he received five years of supervised probation. The record
further reveals that the State filed a petition to revoke on September 7, 2007. In the petition,
the State alleged that Johnson had inexcusably violated the terms of his probation by failing
to report to his probation officer; by not paying probation-service fees and sheriff’s fees; by Cite as 2014 Ark. 74
not completing any community-service work; and by failing to attend substance-abuse
counseling. At a hearing convened on November 10, 2008, Johnson waived the right to a
revocation hearing and admitted that he had not abided by the terms of his probation. The
circuit court accepted Johnson’s plea that he had violated the conditions of probation, and the
court set a sentencing hearing for January 12, 2009. The court advised Johnson that a prison
sentence would be forthcoming if he did not bring himself into compliance by the January
2009 hearing. However, the circuit court postponed the sentencing hearing on multiple
occasions at Johnson’s request, and the hearing was not held until February 16, 2010. At the
sentencing hearing, the State presented testimony as to Johnson’s continued lack of
compliance with the terms of probation. Afterward, the circuit court entered a judgment and
commitment order sentencing him to ten years in the Arkansas Department of Correction.
Johnson appealed the revocation of his probation, arguing that the circuit court erred
by revoking his probation because he did not waive the sixty-day time limitation for
conducting the revocation hearing and because he did not receive notice of the grounds on
which the State was seeking revocation. The court of appeals affirmed on both points,
holding that neither issue had been preserved for appeal. Johnson v. State, 2011 Ark. App. 590.
Thereafter, Johnson filed a timely petition for postconviction relief in which he
asserted that his counsel was ineffective for not pursuing the argument that the sixty-day time
period for holding the revocation hearing had expired and for not asserting that he did not
receive adequate notice of the alleged probation violations. The circuit court denied the
petition without a hearing by entry of an order dated June 25, 2012. Johnson now appeals Cite as 2014 Ark. 74
the denial of postconviction relief.
For reversal, Johnson argues that the circuit court erred in finding that he did not
receive ineffective assistance of counsel on both grounds asserted in his petition. The criteria
for assessing the effectiveness of counsel were enunciated by the United States Supreme Court
in Strickland v. Washington, 466 U.S. 668 (1984). In asserting ineffective assistance of counsel
under Strickland, the petitioner must first show that counsel’s performance was deficient.
Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. There is a strong presumption that trial
counsel’s conduct falls within the wide range of professional assistance, and an appellant has
the burden of overcoming this presumption by identifying specific acts or omissions of trial
counsel, which, when viewed from counsel’s perspective at the time of the trial, could not
have been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181,
403 S.W.3d 55. 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. Mason v. State, 2013 Ark. 492, ___ S.W.3d ___. 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. White v. State, 2013
Ark. 171, ___ S.W.3d ___.
This court does not reverse a denial of postconviction relief unless the circuit court’s
findings are clearly erroneous. Davenport v. State, 2013 Ark. 508, ___ S.W.3d ___. A finding
is clearly erroneous when, although there is evidence to support it, after reviewing the entire
evidence, we are left with the definite and firm conviction that a mistake has been committed. Cite as 2014 Ark. 74
Adams v. State, 2013 Ark. 174, ___ S.W.3d ___.
As his first point on appeal, Johnson contends that the circuit court erred by not
finding that his counsel was ineffective for failing to raise the issue that the revocation hearing
had been held outside the sixty-day limitation set by statute. He claims that he was arrested
and served with the petition to revoke on July 2, 2008,1 and that the November 10, 2008
hearing was not held within sixty days following his arrest.
At the time of Johnson’s revocation, Arkansas Code Annotated section 5-4-310(b)(2)
(Repl. 2006) required revocation hearings to be held within sixty days of the defendant’s
arrest for the probation violation.2 In denying this claim of ineffective assistance of counsel,
the circuit court found that the sixty-day limitation period did not apply because Johnson was
released on bail pending the revocation hearing. The facts of this case and the law bear out
the circuit court’s conclusion. The record reveals that Johnson was released on a cash bond
on the date he was arrested on the revocation petition. This court has observed that the
purpose of the limitation period is to assure that a defendant is not detained in jail for an
unreasonable time awaiting his revocation hearing. Boone v. State, 270 Ark. 83, 603 S.W.2d
410 (1980). We have also held that the time limitation loses its meaning and is inapplicable
when the defendant is not incarcerated while awaiting his revocation hearing. Parks v. State,
1 The record reflects that Johnson was arrested on a bench warrant and was served with the petition to revoke on June 8, 2008. 2 The General Assembly repealed section 5-4-310 by Act 570, § 12 of 2011. The provisions of the former statute in revised form now appear at Arkansas Code Annotated section 16-93-307 (Supp. 2013). See Act 570, § 90 of 2011. Cite as 2014 Ark. 74
303 Ark. 208, 795 S.W.2d 49 (1990). Because Johnson was not incarcerated preceding the
revocation hearing, the limitations period did not apply. Consequently, the circuit court’s
finding that counsel was not ineffective is not clearly erroneous because, had counsel raised
the issue, the argument would not have been successful. See Camargo v. State, 346 Ark. 118,
55 S.W.3d 255 (2001) (holding that trial counsel is not ineffective for failing to make an
argument that is meritless); Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000) (holding that
trial counsel cannot be ineffective when he fails to make an argument that has no merit). We
affirm the circuit court’s decision on this point.
As his next claim, Johnson faults his counsel for not advancing the argument that the
State failed to provide notice of the conditions of probation that he had allegedly violated.
In making this argument, Johnson maintains that the circuit court allowed him to remain on
probation following the hearing held on November 10, 2008, and that the court continued
the matter until January 12, 2009, to determine whether he was complying with the terms
of probation. Further, Johnson contends that when the hearing was eventually held on
February 16, 2010, the State presented testimony of violations that had occurred after the
November 2008 hearing. He claims that the State was required to file a new petition to
revoke to include alleged violations that occurred after the petition to revoke had first been
filed and then heard on November 10, 2008. Johnson urges that his counsel was ineffective
for not objecting to testimony of violations occurring outside the scope of the petition to
revoke and of which he had no notice.
In its order, the circuit court offered no direct ruling on the issue raised by Johnson in Cite as 2014 Ark. 74
his Rule 37 petition and in this appeal. Apparently, the circuit court understood Johnson’s
argument to be that counsel was ineffective for failing to assert that Johnson had not received
notice of the conditions of his probation when he was placed on probation, which is an
entirely separate issue from the one at hand. Rule 37.3(c) provides that an evidentiary hearing
should be held in a postconviction proceeding unless the files and record of the case
conclusively show that the prisoner is entitled to no relief. Wooten v. State, 338 Ark. 691, 1
S.W.3d 8 (1999) (citing Bohanan v. State, 327 Ark. 507, 510, 939 S.W.2d 832, 833 (1997)
(per curiam)). If the files and the record show that the petitioner is not entitled to relief, the
circuit court is required to make written findings to that effect. Ark. R. Crim. P. 37.3(a).
When the circuit court fails to make such findings, it is reversible error, except in cases where
it can be determined from the record that the petition is wholly without merit or where the
allegations in the petition are such that it is conclusive on the face of the petition that no relief
is warranted. Rodriguez v. State, 2010 Ark. 78 (per curiam); see also Sanders v. State, 352 Ark.
16, 98 S.W.3d 35 (2003). Despite the absence of specific findings, we conclude that
Johnson’s argument is wholly without merit.
The record reveals that the circuit court revoked Johnson’s probation at the November
2008 hearing when it accepted Johnson’s admission that he had violated the terms of his
probation. The record also demonstrates that the January 2009 hearing was scheduled for the
purpose of sentencing Johnson upon the revocation of his probation. As also shown by the
record, the circuit court granted six continuances of the sentencing hearing at Johnson’s
request, and the court ultimately issued an arrest warrant for Johnson after he failed to appear Cite as 2014 Ark. 74
at a sentencing hearing scheduled for November 9, 2009. The sentencing hearing finally took
place on February 16, 2010. Even though the circuit court heard testimony regarding
Johnson’s continued failure to comply with the terms of probation, it was not necessary for
the State to file a new petition to revoke. The circuit court had already revoked Johnson’s
probation in November 2008. Moreover, it was not inappropriate for the circuit court to
consider further evidence for the purpose of sentencing. Therefore, Johnson’s counsel was
not ineffective for failing to object to the testimony or by failing to argue that he did not
receive adequate notice of the probation violations. A petitioner does not demonstrate the
requisite prejudice for a claim of ineffective assistance based on the failure to make a motion
or objection if he does not establish in his petition that counsel could have made a successful
motion or objection, and trial counsel cannot be ineffective for failing to make an objection
or argument that is without merit. Lowe v. State, 2012 Ark. 185, ___ S.W.3d ___ (per
curiam). Accordingly, we find no merit in Johnson’s argument.
James P. Clouette, for appellant.
Dustin McDaniel, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.