Casey Matthews v. State of Arkansas

Casey MATTHEWS v. STATE Of Arkansas

CR 97-461                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 23, 1998


1.   Attorney & client -- ineffective-assistance claim -- proof
     required. -- To prevail on a claim of ineffective assistance
     of counsel, the petitioner must show first that counsel's
     performance was deficient; this requires showing that counsel
     made errors so serious that counsel was not functioning as the
     "counsel" guaranteed the petitioner by the Sixth Amendment;
     second, the petitioner must show that the deficient
     performance prejudiced the defense, which requires showing
     that counsel's errors were so serious as to deprive the
     petitioner of a fair trial; unless a petitioner makes both
     showings, it cannot be said that the conviction resulted from
     a breakdown in the adversarial process that renders the result
     unreliable; a court must indulge in a strong presumption that
     counsel's conduct falls within the wide range of reasonable
     professional assistance; the petitioner must show there is a
     reasonable probability that, but for counsel's errors, the
     factfinder would have had a reasonable doubt respecting guilt,
     i.e., the decision reached would have been different absent
     the errors; a reasonable probability is a probability
     sufficient to undermine confidence in the outcome of the
     trial; in making a determination on a claim of
     ineffectiveness, the totality of the evidence before the judge
     or jury must be considered.
2.   Appeal & error -- postconviction relief -- denial of -- when
     reversed. -- A circuit court's order denying postconviction
     relief will not be reversed unless it is clearly erroneous.  

3.   Attorney & client -- incompetence asserted for first time in
     petition for postconviction relief -- burden of proof. -- A
     petitioner who asserts his incompetence for the first time in
     a petition for postconviction relief has the heavy burden of
     demonstrating with facts that he was not competent at the time
     of trial or at the time of his guilty plea.

4.   Attorney & client -- incompetence asserted for first time in
     petition for postconviction relief -- defense counsel not
     ineffective for failing to request mental evaluation. --
     Appellant's defense counsel was not ineffective for failing to
     request a mental evaluation where, other than appellant's own
     testimony, the only indication that he suffered from any
     mental disability appeared on a personal-history
     questionnaire, where it was indicated that appellant, at least
     two years prior to the filing of the charges, had a "drug-
     related" disability.   

4.   Attorney & client -- failure to investigate potential
     witnesses alleged -- appellant failed to demonstrate
     prejudice. -- Although appellant told his attorney about
     several people who could testify about his character, he did
     not explain during either his testimony or in his petition
     what the contents of their testimony would have been or how it
     would have affected his defense; therefore, even if it was
     assumed that counsel performed deficiently by failing to
     investigate these witnesses, appellant failed to demonstrate
     prejudice under the two-pronged standard of Strickland v.
     Washington, 466 U.S. 668 (1984).

5.   Attorney & client -- claim that defense counsel did not fully
     investigate State's case -- appellant failed to meet burden of
     proof. --- It was clear that counsel was well aware of both
     the evidence the State intended to use against appellant as
     well as the full extent of the punishment that his client
     could receive if the case went to trial; therefore, appellant
     did not sustain his burden of proving that his defense counsel
     did not fully investigate the State's case.

6.   Attorney & client -- ground for relief unsupported by evidence
     -- no postconviction relief warranted. -- While the failure to
     move for a continuance was included among the grounds for
     relief in appellant's motion to vacate his guilty plea, he did
     not allege how he was prejudiced by such a failure;
     furthermore, appellant did not introduce any evidence about
     the alleged failure to move for a continuance during the
     postconviction hearing; no postconviction relief on the claim
     was warranted.


     Appeal from Mississippi Circuit Court; John Fogleman, Judge;
affirmed.
     Gardner Law Firm, by:  Charles J. Gardner, for appellant.
     Winston Bryant, Att'y Gen., by:  Darnisa Evans Johnson, Asst.
Att'y Gen., for appellee.

     Per Curiam.
     In 1990, the appellant, Casey Matthews, pleaded guilty to one
count of burglary and one count of theft of property.  He was
sentenced to twenty years with thirteen years suspended on the
burglary charge, and ten years with ten years suspended on the
theft of property charge.  The court ran the sentences
concurrently.  In 1995, he was charged with aggravated assault
after he allegedly threatened his girlfriend with a butcher knife. 
The filing of the aggravated assault charge caused the prosecutor
to seek a revocation of the suspended sentence that Matthews
received for the burglary conviction.  The suspended sentence was
revoked, and Matthews was sentenced to ten years on the burglary
conviction from 1990.
     In 1990, when Matthews pleaded guilty to the burglary charge, 
Arkansas Criminal Procedure Rule 37 had been abolished and replaced
with Arkansas Criminal Procedure Rule 36.4.  Under Rule 36.4,
claims of ineffective assistance of counsel had to be raised in a
motion for a new trial within thirty days of the judgment. 
Matthews apparently did not file such a motion, but sought habeas
corpus relief pursuant to 28 U.S.C.  2254 in federal court.  The
Federal District Court for the Eastern District of Arkansas ordered
that a writ of habeas corpus would issue unless Matthews was given
an opportunity to pursue his ineffective assistance of counsel
claim in state court.
     Pursuant to the federal court order, Matthews filed a motion
to vacate his guilty plea in the Circuit Court of Mississippi
County.  In the motion, Matthews alleged that he did not receive
effective assistance of counsel at the time he entered his guilty
plea. The Circuit Court denied relief.  Matthews now appeals that
order.
     Matthews's court-appointed counsel has filed a motion to
withdraw and a brief stating there is no merit to the appeal. 
Counsel has filed the motion and brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-
3(j).  Under the Rule, a court-appointed attorney who wishes to
withdraw from an appeal must abstract and brief all of the rulings
that were adverse to his client.  Although such a "no-merit" brief
is typically filed in a direct appeal from a judgment, we have also
allowed the filing of no-merit briefs in postconviction appeals. 
See Riley v. State, 298 Ark. 292, 766 S.W.2d 921 (1989).
     After the filing of a no-merit brief, the appellant has thirty
days to raise additional arguments in a pro-se brief.  Ark. Sup.
Ct. R. 4-3(j).  Matthews has not filed a brief.  The State agrees
that there is no merit to the appeal.  
     In this case, the only ruling that is adverse to Matthews is
the denial of his motion to vacate his guilty plea.  In the written
order that was filed, the Circuit Court denied relief on the basis
that Matthews's counsel was effective, and that in any event,
Matthews had not proven that he was prejudiced by the alleged
deficient performance.  In the no-merit brief, counsel argues that
the Circuit Court's order was not clearly erroneous.  We agree. 
     To prevail on a claim of ineffective assistance of counsel,
the petitioner must show first that counsel's performance was
deficient.  This requires showing that counsel made errors so
serious that counsel was not functioning as the "counsel"
guaranteed the petitioner by the sixth amendment.  Second, the
petitioner must show that the deficient performance prejudiced the
defense, which requires showing that counsel's errors were so
serious as to deprive the petitioner of a fair trial.  Unless a
petitioner makes both showings, it cannot be said that the
conviction resulted from a breakdown in the adversarial process
that renders the result unreliable.  A court must indulge in a
strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.  The petitioner must
show there is a reasonable probability that, but for counsel's
errors, the factfinder would have had a reasonable doubt respecting
guilt, i.e., the decision reached would have been different absent
the errors.  A reasonable probability is a probability sufficient
to undermine confidence in the outcome of the trial.  In making a
determination on a claim of ineffectiveness, the totality of the
evidence before the judge or jury must be considered.  Strickland
v. Washington, 466 U.S. 668 (1984).  A circuit court's order
denying postconviction relief will not be reversed unless it is
clearly erroneous.   Catlett v. State, 331 Ark. 270,     S.W.2d   
(1998).
     Matthews was originally charged with a total of six counts of
burglary and theft of property, and the prosecutor petitioned to
revoke the probation that Matthews received for the conviction in
1989.  According to his defense counsel, Matthews gave a full
confession to each of the charges in 1990, and a portion of the
stolen property was found in his possession.  The outcome of
Matthews's case, even under these circumstances, was a guilty plea
to only two of the charges; an agreement with the prosecutor to
withdraw the application for a revocation; and concurrent sentences
for each conviction with a majority of the sentences suspended.  If
he fulfilled the conditions of his suspended sentences, Matthews
faced only seven years in prison.  
     It does not appear that Matthews had any complaints about his
attorney's performance until his suspended sentence was revoked in
1995.  In the motion to vacate the guilty plea that was
subsequently filed, Matthews alleged that his counsel was
ineffective because he failed to request a psychiatric evaluation;
because he failed to investigate character witnesses; because he
failed to fully investigate the State's case; and because he failed
to move for a continuance.

                      The mental evaluation
     During the postconviction hearing, Matthews testified that
problems within his family caused him to be depressed during the
time period spanning from the filing of the charges to the entry of
his guilty plea.  He stated that he told his attorney that he was
depressed, and that he had previously been under the care of a
psychologist.  He did not, however, specifically request that his
attorney seek a mental evaluation.  Matthews added that he received
a mental evaluation in 1995 in connection with the aggravated
assault charge, and that the diagnosis at that time was
dissociative disorder and "major depression."  
     According to Matthews, the depression from which he suffered
in 1990 was "much worse" than in 1995, and that a mental evaluation
in 1990 was necessary because he was not sufficiently competent to
assist his lawyer.  Matthews testified that if he had received the
mental evaluation, he would have insisted on going to trial once
his competency was restored. 
     Matthews's defense counsel testified that he represented
Matthews in 1989, when he pleaded guilty and received a sentence of
five years' probation.  Also, defense counsel testified that the
only indication that Matthews had any kind of physical or mental
disability was Matthews's response to a question on a standard
personal history questionnaire.  Apparently, Matthews originally
responded that he had no prior mental or physical disabilities, but
that response was later corrected to "drug-related, '86 and '87." 
     We conclude that Matthews's defense counsel was not
ineffective for failing to request a mental evaluation.  We have
previously held that a petitioner who asserts his incompetence for
the first time in a petition for postconviction relief has the
heavy burden of demonstrating with facts that he was not competent
at the time of trial, or, as in this case, at the time of his
guilty plea.  Henry v. State, 288 Ark. 592, 708 S.W.2d 88 (1986). 
Other than Matthews's testimony, the only indication that he
suffered from any mental disability appeared on the personal
history questionnaire, where it was indicated that Matthews, at
least two years prior to the filing of the charges in 1990, had a
"drug-related" disability.  Defense counsel, moreover, testified
that he had no other indication that a mental evaluation was
warranted.   
                     The character witnesses
     Matthews testified that he told his attorney about several
people, most of whom were family members, who could testify about
his character.  Matthews did not explain, during either his
testimony or in his petition, what the contents of their testimony
would have been and most importantly, how it would have affected
his defense.  Therefore, even if we assume that counsel performed
deficiently by failing to investigate these witnesses, Matthews has
failed to demonstrate prejudice under the two-pronged Strickland
standard.
           Counsel's investigation of the State's case
     Defense counsel testified that during plea negotiations, he
was aware that Matthews had confessed to all six burglary and theft
of property charges, and that he had given the police the names of
two juveniles who also participated in the crimes.  Those
juveniles, in turn, identified Matthews as their accomplice. 
Defense counsel also testified that he was aware that a portion of
the stolen property was found in Matthews's possession.  
     When asked if he was satisfied with the plea negotiations and
the sentence that his client received, the attorney responded that
he was pleased because a trial might have resulted in a ninety-year
prison term on the six charges in 1990, and a revocation of the
probation Matthews received in 1989.  According to defense counsel,
the revocation could have resulted in an additional thirty-year
sentence.  
     It is clear that counsel was well aware of both the evidence
the State intended to use against Matthews as well as the full
extent of the punishment that his client could receive if the case
went to trial.  Consequently, Matthews did not sustain his burden
of proving that his defense counsel did not fully investigate the
State's case.
     Lastly, we note that while the failure to move for a
continuance was included among the grounds for relief in Matthews's
motion to vacate his guilty plea, he did not allege how he was
prejudiced by such a failure.  Furthermore, Matthews did not
introduce any evidence about the alleged failure to move for a
continuance during the postconviction hearing.  Consequently, no
postconviction relief on this claim is warranted.  Strickland v.
Washington, supra.
     Affirmed.