Thurmond v. State

2014 Ark. 176

• Court: Supreme Court of Arkansas
• Decided: April 17, 2014
• Docket: CR-12-802
• Status: Published

Opinion

Cite as 2014 Ark. 176

SUPREME COURT OF ARKANSAS No. CR-12-802

SAM EDWARD THURMOND, SR. Opinion Delivered April 17, 2014 APPELLANT PRO SE APPEAL FROM THE V. FAULKNER COUNTY CIRCUIT COURT, [NO. 23CR-11-318] STATE OF ARKANSAS APPELLEE HONORABLE CHARLES EDWARD CLAWSON, JR., JUDGE

APPEAL DISMISSED.

PER CURIAM

In 2012, appellant Sam Edward Thurmond, Sr., entered a negotiated plea of guilty to a

charge of theft of property in the Faulkner County Circuit Court, and he received a sentence of

120 days’ imprisonment in the county jail and 60 months’ probation. Appellant filed in the trial

court a timely petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1

(2013). The trial court held a hearing on both the Rule 37.1 petition and a petition for probation

revocation filed by the State. In an order filed in court on May 21, 2012, the trial court revoked

appellant’s parole, imposing 360 additional days in the county jail and additional parole time. It

also denied the Rule 37.1 petition in an order entered June 1, 2012.1 Appellant appeals the order

denying postconviction relief.

Appellant was released from the Faulkner County jail after filing this appeal, and he is

1 Because appellant was incarcerated on the charge at the time that the order denying postconviction relief was entered, the trial court had jurisdiction to grant or deny relief. See Branning v. State, 2010 Ark. 401. Cite as 2014 Ark. 176

therefore no longer entitled to postconviction relief. Herron v. State, 2011 Ark. 71 (per curiam);

see also Bohanan v. State, 336 Ark. 367, 985 S.W.2d 708 (1999) (holding that a petitioner was not

“in custody” for purposes of Rule 37 where the petitioner was on parole). Because appellant can

no longer receive relief on his claims for postconviction relief, those claims are moot, and we

must dismiss the appeal.

Moreover, even if appellant’s claims were not moot, the appeal is without merit.

Appellant raises some issues on appeal concerning trial error, violations of attorney-client

privilege, and attorney conflict that were not developed below and for which he received no

ruling. See Hogan v. State, 2013 Ark. 223 (per curiam) (The appellant had an obligation to obtain

a ruling on each claim, and he could not raise new arguments on appeal.). The remaining issues

in the appeal concern appellant’s allegation that trial counsel was ineffective for failing to seek

suppression of evidence concerning a lineup. Appellant contends that the copies of the photos

that comprised the lineup that were provided to the defense were suggestive and that, because

counsel did not act appropriately to suppress that evidence and his recommendations concerning

that evidence and entry of a plea were therefore flawed, appellant’s plea was not knowingly or

voluntarily entered.

Trial counsel testified that his examination of the original photos that would have been

introduced showed that the lineup was not suggestive and that, as a consequence, he could not

have challenged the evidence with what would have been a meritless claim. The trial court

found that counsel’s testimony was credible. The trial court also found that counsel’s

recommendations based on that conclusion were the result of a reasonable strategic decision and

2 Cite as 2014 Ark. 176

that it followed that appellant’s plea was knowingly and voluntarily entered. When this court

reviews an order that denies postconviction relief, it does not reverse unless the trial court’s

findings are clearly erroneous. Hayes v. State, 2014 Ark. 104, ___ S.W.3d ___. 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. Id.

Appellant’s claims hinged on the potential challenge to the lineup, and the record

supports the trial court’s conclusion that appellant did not demonstrate that there was a

meritorious challenge that trial counsel could have made to that lineup. Failure to make a

meritless objection or motion does not constitute ineffective assistance of counsel. Nelson v.

State, 2014 Ark. 28 (per curiam). The trial court did not clearly err in denying postconviction

relief.

Sam Edward Thurmond, Sr., pro se appellant.

Dustin McDaniel, Att’y Gen., by: Nicana C. Sherman, Ass’t Att’y Gen., for appellee.