Polivka v. State

2010 Ark. 152, 362 S.W.3d 918, 2010 WL 1253528, 2010 Ark. LEXIS 237
CourtSupreme Court of Arkansas
DecidedApril 1, 2010
DocketNo. CR 08-431
StatusPublished
Cited by42 cases

This text of 2010 Ark. 152 (Polivka 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
Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918, 2010 WL 1253528, 2010 Ark. LEXIS 237 (Ark. 2010).

Opinion

RONALD L. SHEFFIELD, Justice.

[¡On July 27, 2006, Appellant Joseph Po-livka entered an unconditional plea of guilty to two counts of criminal attempt to commit murder in the first degree and one count of possession of a firearm by certain persons. Appellant requested that he be sentenced by a jury, pursuant to Ark.Code Ann. § 16-97-101(6) (1987). After the sentencing proceeding held on August 1, 2006, the jury sentenced Appellant to thirty years’ imprisonment in the Arkansas Department of Correction for each count of attempted murder, and five years’ imprisonment in the Arkansas Department of Correction for possession of a firearm. The two counts of attempted murder were subject to the felony-firearm sentencing enhancement under Ark.Code Ann. § 16-90-120 (1987), and the jury sentenced Appellant to an additional fifteen years for each count. The circuit court ordered all sentences to be served consecutively, for a cumulative sentence of ninety-five years’ imprisonment.

^Appellant filed a timely notice of appeal on August 22, 2006. He maintained that his fifteen-year felony-firearm sentencing enhancement for each count of attempted murder was unjust and excessive under Ark.Code Ann. § 16-90-120, because the enhancement effectively resulted in a life sentence. He also argued that he should have been credited for meritorious good time, particularly when the following statute, Ark.Code Ann. § 16-90-121, which allows for such credit. The Arkansas Court of Appeals found that Appellant did not object to the length of the sentences he received at the trial level, and therefore he was barred from appealing them. Also, Appellant’s counsel had discussed the possibility of Appellant receiving good time credit with the judge before jury voir dire at the sentencing hearing. Finally, the court of appeals held that Appellant’s sentences were in fact not excessive, since the statute expressly permitted a defendant to receive a fifteen-year enhancement for each count. Section 16-90-120 has no provision for crediting meritorious good time, and it is the sole purview of the state legislature, not the court, to introduce such a provision. Polivka v. State, CR 06-1337, 2007 WL 2660247 (Ark.App. Sept. 12, 2007) (unpublished).

Then, on November 7, 2007, Appellant timely filed in the circuit court this verified pro se petition for postconviction relief pursuant to Ark. R.Crim. P. 37.1 (2007). Appellant alleged that he was denied effective assistance of counsel and due process, based on the following points of error: (1) the trial counsel failed to object to a jury instruction relating to parole eligibility, when Appellant would be ineligible for parole pursuant to Ark.Code Ann. § 16-93-609; (2) the trial counsel failed to object to the prosecutor’s erroneous statement to lathe jury that Appellant would likely be released from prison early due to overcrowding; (3) the trial counsel failed to object to the prosecutor’s inflammatory statement to the jury that the jury should not believe “one ioda [sic] of what petitioner has told you”; (4) the trial counsel failed to investigate, discover, and present mitigating evidence regarding the effect of prescribed drugs on Appellant’s mental state at the time of the crime; (5) the trial court failed to follow Ark. R.Crim. P. 24.4 and 24.6 in accepting Appellant’s guilty plea, in that the court failed to ensure that Appellant understood the mandatory minimum and maximum sentences he could receive; (6) the trial counsel failed to adequately prepare for trial, in that he did not visit Appellant frequently enough, or sufficiently discuss the case with Appellant; (7) the trial counsel failed to object to Appellant’s sentences on the grounds that they were excessive, and failed to seek leniency and concurrent sentences from the court; and (8) the trial counsel failed to object to the application of the felony-firearm enhancement, Ark.Code Ann. § 16-90-120, which is in conflict with Ark.Code Ann. § 5-6-104.

On February 21, 2008, the circuit court entered an order denying Appellant’s petition without a hearing. The court found that the following claims of ineffective assistance of counsel, as alleged by Appellant, did not provide grounds for Rule 37 relief: (1) the trial counsel’s failure to object to sentencing jury instructions; (2) the trial counsel’s failure to object to the State’s sentencing arguments; (3) the trial counsel’s failure to present mitigating evidence regarding Appellant’s mental health and use of prescription medication; (4) the trial counsel’s failure to object to the circuit court’s sentencing procedures; (5) the trial counsel’s |4failure to visit with Appellant sufficiently to prepare for trial; and (6) the trial counsel’s failure to object to sentences imposed. The court held that the petition, files, and records of the case conclusively showed that Appellant was not entitled to relief. On March 17, 2008, Appellant filed a timely notice of appeal.

Appellant alleges several points on appeal. He maintains that he was denied effective assistance of counsel because his trial counsel (1) failed to prepare adequately for trial; (2) failed to raise the issue of the felony-firearm enhancement; (3) failed to ensure that the court followed Ark. R.Crim. P. 24.4, 24.6 and 24.7; (4) failed to object to a jury instruction on parole and good-time-transfer eligibility; (5) failed to object to the prosecutor’s closing comments to the jury; and (6) failed to present mitigating evidence during sen-fencing. Appellant further asserts that the circuit court erred in dismissing his claims without reviewing the record or conducting an evidentiary hearing.

This court will not reverse a denial of postconviction relief unless the circuit court’s findings are clearly erroneous. 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. State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007). In the context of review of a circuit court’s denial of postcon-viction relief on a claim of ineffective assistance of counsel, we look to whether the circuit court clearly erred based on the totality of the evidence. Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007). In this case, we find no error and affirm the decision of the circuit court.

[As an initial matter, we must address whether Appellant may assert all of his allegations on appeal. Appellant advances several claims of ineffective assistance of counsel, some of which stem from errors alleged as part of his plea of guilty and some of which stem from errors alleged to have occurred during the subsequent sentencing proceeding. We have frequently held that “on appeal from the denial of a Rule 37 petition following pleas of guilty there are only two issues for review — one, whether the plea of guilty was intelligently and voluntarily entered, two, were the pleas made on the advice of competent counsel.” Branham v. State, 292 Ark. 355, 356, 730 S.W.2d 226, 227 (1987). This rule would seemingly prevent Appellant from arguing any of his claims regarding his counsel’s effectiveness during the sentencing hearing.

However, Appellant was sentenced under the Arkansas bifurcated-sentencing statute, Ark.Code Ann. § 16-97-101. We have addressed at length the unique scenario that bifurcation affords in the context of direct appeals:

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

Related

Heath Hunsaker v. State of Arkansas
2025 Ark. App. 37 (Court of Appeals of Arkansas, 2025)
Richard Jerome McClure, Jr. v. State of Arknsas
2024 Ark. App. 487 (Court of Appeals of Arkansas, 2024)
Randy James Myers v. State of Arkansas
2021 Ark. 93 (Supreme Court of Arkansas, 2021)
Kenneth Miller v. State of Arkansas
2020 Ark. App. 270 (Court of Appeals of Arkansas, 2020)
Randall Thomas McArty v. State of Arkansas
2020 Ark. 68 (Supreme Court of Arkansas, 2020)
Kenneth Ray Marshall v. State of Arkansas
2020 Ark. 66 (Supreme Court of Arkansas, 2020)
Darrell Dennis v. State of Arkansas
2020 Ark. 28 (Supreme Court of Arkansas, 2020)
Stacey Eugene Johnson v. State of Arkansas
2019 Ark. 391 (Supreme Court of Arkansas, 2019)
Fred L. Williams v. State of Arkansas
2019 Ark. 289 (Supreme Court of Arkansas, 2019)
King v. State
2018 Ark. App. 605 (Court of Appeals of Arkansas, 2018)
Williams v. State
559 S.W.3d 297 (Court of Appeals of Arkansas, 2018)
Collins v. State
542 S.W.3d 864 (Supreme Court of Arkansas, 2018)
Gordon v. State
539 S.W.3d 586 (Supreme Court of Arkansas, 2018)
McClinton v. State
2017 Ark. 360 (Supreme Court of Arkansas, 2017)
True v. State
2017 Ark. 323 (Supreme Court of Arkansas, 2017)
Turner v. State
2017 Ark. 253 (Supreme Court of Arkansas, 2017)
Nichols v. State
2017 Ark. 129 (Supreme Court of Arkansas, 2017)
Smith v. State
2016 Ark. 401 (Supreme Court of Arkansas, 2016)
Sandrelli v. State
2016 Ark. 103 (Supreme Court of Arkansas, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
2010 Ark. 152, 362 S.W.3d 918, 2010 WL 1253528, 2010 Ark. LEXIS 237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/polivka-v-state-ark-2010.