Mister v. State.2

2014 Ark. 446

• Court: Supreme Court of Arkansas
• Decided: October 30, 2014
• Docket: CR-13-951
• Status: Published

Opinion

Cite as 2014 Ark. 446

SUPREME COURT OF ARKANSAS No. CR-13-951

SHARVELT MARQUETTE MISTER Opinion Delivered October 30, 2014 APPELLANT APPEAL FROM THE SEBASTIAN V. COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. CR-10-1320] STATE OF ARKANSAS APPELLEE HONORABLE JAMES O. COX, JUDGE

AFFIRMED.

CLIFF HOOFMAN, Associate Justice

Appellant Sharvelt Marquette Mister appeals from the circuit court’s denial of his

petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. He

argues on appeal that his trial counsel was ineffective for (1) failing to effectively communicate

and inform him of a global plea offer; (2) failing to make a proper Batson challenge; (3) failing

to pursue a motion to be relieved as counsel; and (4) not being adequately prepared for trial.

We have jurisdiction of this appeal pursuant to Rule 37 and Arkansas Supreme Court Rule

1-2(a)(8) (2013). We affirm.

On August 17, 2011, Mister was convicted by a Sebastian County jury of delivery of

cocaine, a class Y felony, for which he was sentenced by the circuit court to twenty-five years’

imprisonment and a suspended sentence of twenty-five years. Mister appealed his conviction,

arguing that the circuit court erred in denying his challenge pursuant to Batson v. Kentucky, Cite as 2014 Ark. 446

476 U.S. 79 (1986), based on the State’s dismissal of two potential jurors—both African

American. On January 30, 2013, the Arkansas Court of Appeals affirmed the judgment in

Mister v. State, 2013 Ark. App. 49, finding that the State had given racially neutral reasons for

striking the jurors, which were not rebutted by Mister, and that the circuit court’s denial of

Mister’s Batson challenge was not clearly erroneous. The court of appeals noted that the

circuit court had also found that the Batson challenges were untimely and agreed with Mister

that this was erroneous; however, because the circuit court had nonetheless proceeded to have

the State supply its reasons for striking the jurors and had ruled on the issue, the court of

appeals addressed the merits of the Batson argument and affirmed Mister’s conviction. Id.

Mister filed a timely Rule 37.1 petition on April 19, 2013, alleging that his trial

counsel was ineffective by (1) not adequately informing him of a global plea offer; (2) not

making a proper Batson challenge; (3) raising his prior convictions during trial; (4) not

pursuing a motion to be relieved as counsel; and (5) not being adequately prepared for trial.

A hearing was held on Mister’s petition, at which Mister testified that he and his trial counsel,

Naif Khoury, had a “bumpy” relationship. While Mister testified that Khoury had

communicated to him global plea offers of thirty years and twenty-five years, which would

have covered this case, as well as other related cases, Mister claimed that he did not

understand the offers or how the State had calculated his total potential “exposure” of 117

years. Mister testified that he did not necessarily reject the offers but needed his counsel to

better explain the calculations to him. Mister stated that there was also an offer of twenty-

three years by the State of which he had not been aware and that he had told Khoury he

2 Cite as 2014 Ark. 446

wanted to take a twenty-year plea offer. Mister testified that he thought he had come to

court to agree to the twenty-year plea but instead ended up going through the trial and being

convicted. He stated that he had requested that Khoury be removed from his case and that

Khoury had filed a motion to be relieved in his revocation case, but it had been denied by the

circuit court.

Mister testified that Khoury had obtained co-counsel, Mosie Boyd, but that Mister

first met her only a few days before the trial. Mister stated that he had signed a note

indicating his agreement to have Boyd represent him and to admit his guilt to the delivery

charge in the hope that he would avoid a life sentence. He also agreed that he was informed

by his counsel that the jury would learn of his prior convictions and sentences during his

testimony. However, Mister claimed that he was not adequately prepared by counsel

regarding what questions would be asked of him.

With regard to the global plea offer, while Khoury agreed with Mister that he had

been ineffective in his attempts to have Mister fully understand and appreciate the

ramifications of the plea, Khoury also testified that he and Mister were of the opinion that the

State’s informant was “less than credible” and that Mister had “adopted the stance that he

would refuse a global offer because both he and I thought it was a type of prosecutorial

extortion and that he would go to trial.” Khoury testified that he had communicated to the

State that Mister would agree to a twenty-year plea but that the State had refused and had

never actually made that particular plea offer. According to Khoury, he had increasing

difficulties communicating with Mister and therefore had obtained the assistance of co-

3 Cite as 2014 Ark. 446

counsel, Boyd. Khoury indicated that their strategy had been to seek mercy from the jury in

order to avoid a life sentence and that this strategy had worked because the jury deadlocked

and was unable to agree on a sentence.

Boyd testified that she was hired as co-counsel less than one week before trial but that

she had discussed Mister’s case with Khoury prior to that time. She testified that she had also

participated as co-counsel in Mister’s trial in a separate case the week before the trial in this

case. Boyd stated that this was her first time to serve as lead counsel but that she felt she was

adequately prepared under the circumstances. With regard to the Batson challenge, Boyd

agreed that the circuit court had erred in finding it untimely and that she had not presented

any follow-up argument to the State’s race-neutral reasons, but she also testified that she had

no idea what follow-up argument she could have offered, even with additional time to

prepare. Boyd agreed that their strategy in this case was to appeal to the mercy of the jurors

and to avoid a life sentence and that Mister had elected to pursue this particular strategy. She

admitted that she was disappointed with some of Mister’s answers to questions during his

testimony, which she indicated were unexpected and then allowed the State to admit

evidence of his prior convictions.

Following the hearing, the circuit court denied Mister’s Rule 37 petition. The court

found that Mister’s claim regarding the global plea offer had previously been litigated and

ruled upon in a postconviction proceeding in his revocation case, as evidenced by the circuit

court’s findings of fact in the prior case that were introduced into evidence by the State at the

hearing. Thus, the circuit court found that Mister was precluded from re-litigating this

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particular claim. The court further found that the only “true factual allegation” made by

Mister in his petition was his allegation that defense counsel presented no viable defense to

the charge against him. However, the court ruled that the decision to admit guilt and seek

mercy from the jury was a strategic and tactical decision of counsel, made with Mister’s

explicit knowledge and approval. The court also noted that the jury’s inability to reach a

unanimous verdict on a sentence showed that counsels’ strategy was effective and that Mister

had failed to prove ineffective assistance of counsel or prejudice with regard to this allegation.

An order to this effect was entered on September 4, 2013, and Mister timely appealed from

the circuit court’s denial of postconviction relief.

A circuit court’s denial of a Rule 37 petition will not be reversed unless the court’s

findings are clearly erroneous. Lockhart v. State, 2011 Ark. 461. In an appeal from a denial

of postconviction relief based 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 in

Strickland v. Washington, 466 U.S. 668 (1984), the circuit court clearly erred in holding that

counsel’s performance was not ineffective. Lockhart, 2011 Ark. 461, at 2. Under the Strickland

test, the petitioner must show that counsel’s performance was deficient and also that counsel’s

deficient performance prejudiced the defense to the extent that the appellant was deprived of

a fair trial. Lowe v. State, 2012 Ark. 185, ___ S.W.3d ___. With respect to the prejudice

requirement, a petitioner must demonstrate that there is a reasonable probability that the fact-

finder’s decision would have been different absent counsel’s errors. Id. A reasonable

probability is a probability that is sufficient to undermine confidence in the outcome of the

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trial. Id. There is a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance, and a petitioner has the burden of overcoming this

presumption by identifying specific acts or omissions of counsel that, when viewed from

counsel’s perspective at the time of trial, could not have been the result of professional

judgment. Id. The burden is also entirely on appellant to provide facts affirmatively

supporting the claims of prejudice. Id.

Although Mister raised five allegations of ineffective assistance of counsel in his petition

to the circuit court, he fails to present any argument on appeal with regard to his claim that

counsel was ineffective for allowing his prior convictions to be admitted during the trial. As

the State contends, arguments not raised on appeal are deemed abandoned and will not be

addressed. Springs v. State, 2012 Ark. 87, 387 S.W.3d 143.

In addition, although he briefly asserts in one or two sentences that Boyd had less than

one week to prepare for trial and that she admitted making mistakes, Mister fails to make any

further argument on appeal with regard to the allegation in his petition that trial counsel failed

to adequately prepare for trial, and he also fails to make any claim of prejudice with regard to

this allegation. Conclusory allegations cannot be the basis for postconviction relief, and the

burden is on appellant to provide facts to support his claims and to affirmatively prove

prejudice. Id. Thus, the circuit court did not clearly err in denying relief on this claim.

Mister does argue on appeal, as he did in his Rule 37 petition, that counsel was

ineffective for failing to adequately communicate to him and explain the global plea offers

made by the State prior to his trial. However, the circuit court found that Mister was barred

6 Cite as 2014 Ark. 446

from re-litigating this claim based on the findings of fact and conclusions of law entered by

the circuit court in a previous postconviction proceeding in a separate case. The order

containing these findings and conclusions by the previous circuit court was admitted into

evidence in this case and stated that the decision to reject the global plea offer was a matter

of “trial tactics and strategy” and was “supported by reasonable professional judgment, which

cannot form a proper basis for relief under Rule 37.1.”

The concept of res judicata has two facets, issue preclusion and claim preclusion. Mason

v. State, 361 Ark. 357, 206 S.W.3d 869 (2005). Under the doctrine of issue preclusion, a

decision by a court of competent jurisdiction on matters which were at issue, and which were

directly and necessarily adjudicated, bars any further litigation on those issues by the plaintiff

or his privies against the defendant or his privies on the same issue. Id. Furthermore, we have

held that this doctrine applies in criminal cases as well as civil proceedings, and when an issue

of ultimate fact has once been determined by a valid and final judgment, that issue cannot

again be litigated between the same parties in any future lawsuit. Id.

Mister fails to offer any argument on appeal with regard to the circuit court’s basis for

its ruling on this claim, which was that he was “precluded from re-litigating the strategic and

tactical reasons for his rejection” of the global plea offers. Arguments unsupported by

convincing argument or authority will not be addressed by this court on appeal. Polivka v.

State, 2010 Ark. 152, 362 S.W.3d 918. Furthermore, as the circuit court noted in its ruling,

the decision to reject the global plea offer in this case was a strategic and tactical one by Mister

and his counsel, and we have repeatedly held that matters of trial strategy and tactics, even if

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arguably improvident, fall within the realm of counsel’s professional judgment and are not

grounds for a finding of ineffective assistance of counsel. Springs, supra. Thus, the circuit

court did not clearly err in its finding with respect to this claim.

Mister also argues on appeal that Khoury was ineffective for failing to pursue a motion

to withdraw that was denied by the circuit court and that Boyd was ineffective for failing to

make a sufficient Batson challenge. However, the circuit court did not rule on these particular

allegations in its order denying Mister’s petition. It is petitioner’s burden to obtain rulings on

all ineffective-assistance claims, and the failure to obtain a ruling precludes appellate review

of that claim. Eastin v. State, 2010 Ark. 275. Thus, Mister has failed to demonstrate that the

circuit court clearly erred in denying his petition for postconviction relief, and we affirm.

Andrew Vess, for appellant.

Dustin McDaniel, Att’y Gen., by: LeaAnn J. Adams, Ass’t Att’y Gen., for appellee.