Andre Dewayne Beverly v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-150

NOT DESIGNATED FOR PUBLICATION

ANDRE DEWAYNE BEVERLY

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered February 9, 2006

PRO SE APPEAL FROM THE CIRCUIT COURT OF ASHLEY COUNTY, CR 2003-110-1, HON. SAM B. POPE, JUDGE

AFFIRMED

PER CURIAM

A jury found Andre Dewayne Beverly guilty of two counts of delivery of cocaine and one count of possession of cocaine. He was sentenced as a habitual offender to an aggregate term of 960 months' imprisonment. The court of appeals affirmed. Beverly v. State, CACR 04-289 (Ark. App. November 3, 2003). Subsequently, Beverly filed in the trial court a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1. The trial court denied the petition, and Beverly, proceeding pro se, has lodged an appeal in this court. Appellant alleges that the trial court erred in denying appellant's petition for postconviction relief pursuant to Rule 37.1 based on ineffective assistance of counsel. We affirm the trial court's order.

The charges against Beverly stemmed from two controlled drug buys in 2003. An informant who was arrested for an unrelated drug charge agreed to assist the police in exchange for favorable treatment regarding his own arrest. Shonni Abernathy, the informant, arranged to purchase cocaine from Beverly on two different occasions, leading to Beverly's arrest.

At the trial, the prosecutor asked Abernathy how he knew Beverly, to which Abernathy responded, "I used to buy drugs from him." Beverly moved for a mistrial, arguing that the response implied that Beverly may have sold drugs on other occasions. The trial court denied the motion. Beverly's trial counsel did not request that an admonition be given to the jury. At the end of the state's case-in-chief, Beverly sought a directed verdict based on insufficiency of the evidence, which the trial court denied.

Later, during Beverly's case-in-chief, Robbie Fuller, the investigator who worked with the informant, testified about the police report he completed regarding the second drug buy. The prosecutor questioned Fuller about the report's failing to mention the presence of a third party, Abraham Shaw, during the drug buy. In response to a question by the prosecutor, Fuller stated, "Abraham Shaw was present during a different buy at that residence."

Again, Beverly's trial attorney sought a mistrial. Beverly argued that the statement implied that Beverly lived in a crack house. The trial court denied the motion and offered to give an admonition to the jury. Beverly's counsel declined the offer, noting that to do so "stirs up the pile." At the end of his case-in-chief, Beverly's counsel again requested a directed verdict claiming lack of sufficiency of evidence. The trial court denied the motion.

Beverly's trial counsel also handled his direct appeal. On appeal, he sought to overturn the jury verdict, arguing that the trial court erred in refusing to grant the requested mistrials. In affirming Beverly's conviction, the court of appeals noted that an admonition is the proper remedy where the claim of prejudice is highly speculative.

In his pro se Rule 37.1 petition, appellant contended that he had been afforded ineffective assistance of counsel. Appellant claimed that his trial counsel failed to request an admonition from the trial court for each of the motions for mistrial, failed to move for a directed verdict based on the sufficiency of the evidence and failed to adequately prepare for the trial. The trial court entered an order denying appellant's petition for Rule 37.1 relief. On the same day the court entered its order, appellant filed a motion to amend the petition for postconviction relief, adding another argument that he received ineffective assistance of counsel. He claimed that because his trial attorney handled appellant's appeal, appellant also received ineffective assistance on appeal.

In its order denying appellant's petition for Rule 37.1 relief, the trial court held that appellant's trial counsel's performance did not fall below an objective standard of reasonableness, nor did his performance have an adverse effect on appellant's defense. The trial court noted that the trial counsel's basis for refusing the admonitions resulted from a tactical decision. Further, the trial court stated that appellant had not proved that he would have been entitled to a motion for directed verdict, as appellant could not make such a showing on the facts of his case.

In the instant matter, appellant argues that the trial court erred by denying appellant's petition for postconviction relief related to appellant's trial counsel's not requesting an admonition and failing to move for directed verdict at the end of the state's case-in-chief. Further, appellant argues that the trial court erred when it failed to conduct a hearing on appellant's petition and failed to rule on appellant's final issue related to ineffective assistance of counsel on appeal.1

Strickland v. Washington, 466 U.S. 668 (1984), sets out appellant's burden when claiming ineffective assistance of counsel. Appellant must demonstrate two components: first, appellant must show that trial counsel's performance was deficient; and second, appellant must show that the deficient performance prejudiced the defense. Strickland, supra; Andrews v. State, 344 Ark. 606,612, 42 S.W.3d 484, 488 (2001)(per curiam). The first component requires a showing that trial counsel's errors were so serious that counsel was not functioning as the "counsel" guaranteed the appellant by the Sixth Amendment. Trial counsel's performance must fall below an objective standard of reasonableness. The second component requires a showing that trial counsel's errors were so serious as to deprive the defendant of a fair trial. The errors must have actually had an adverse effect on the defense. Strickland, supra; Andrews, supra.

Unless appellant makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. Actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000) (per curiam); Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997).

There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). To rebut this presumption, appellant must show that there is a reasonable probability that the decision reached would have been different absent the errors. Greene v. State, 356 Ark. 59, 64, 146 S.W.3d 871, 876 (2004). A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Greene, 356 Ark. at 64, 146 S.W.3d at 875-876. Because of this standard, the burden is on appellant to provide facts to support his claims of prejudice. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001) (per curiam). Allegations without factual substantiation are insufficient to overcome the presumption that counsel is effective. Id. at 413, 39 S.W.3d at 795. Conclusory statements cannot be the basis of postconviction relief. Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003).

We do not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous or clearly against the preponderance of the evidence. Greene, supra. 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. Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002).

Here, we agree with the trial court that the decision not to request an admonition is largely a matter of trial strategy. See Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001); Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000); Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998) (per curiam). Matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel's professional judgment and are not grounds for a finding of ineffective assistance of counsel. Noel, supra. We thus affirm the trial court's ruling on this issue.

Next, appellant claims that he received ineffective assistance of counsel when his trial attorney failed to seek a directed verdict at the end of the state's case-in-chief. The record here shows clearly that appellant's trial counsel moved for directed verdict based on insufficiency of the evidence both at the conclusion of the state's case-in-chief and at the conclusion of Beverly's case-in-chief. Appellant's contention is both erroneous and conclusory. Conclusory statements cannot be the basis of postconviction relief. Jackson, supra. Thus, appellant's mere conclusory statement without factual substantiation does not demonstrate he suffered prejudice by representation of trial counsel. Nelson, supra, Jackson , supra. We affirm the trial court's ruling on this issue.

Appellant then argues that the trial court erred by not conducting a hearing on appellant's Rule 37.1 petition. It is well-settled that the trial court has discretion pursuant to Rule 37.3(a) to decide whether the files or records are sufficient to sustain the court's findings without a hearing. Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003). In accordance with this rule, a court is not required to conduct an evidentiary hearing if it can conclusively determine from the record that appellant's contentions are meritless. Stewart v. State, 295 Ark. 48, 746 S.W.2d 58 (1988). After a thorough review of the instant case, we conclude that the record clearly reflects that appellant's allegations in his Rule 37.1 petition were without merit, and thus he was not entitled to an evidentiary hearing.

Finally, appellant argues that the trial court erred by failing to address his contention that his trial counsel rendered ineffective assistance when appealing his conviction. Appellant specifically complains that his appellate counsel should have included the sufficiency of the evidence argument as a second basis for appeal. However, appellant's argument regarding ineffective assistance of his appellate counsel was not before the trial court when it rendered its decision. Appellant added this final argument in his motion for leave to file an amended petition for postconviction relief. The file-mark date indicates that the court clerk filed the motion for amended petition on the same day the trial court entered its order denying postconviction relief.2

Rule 37.2(e) of the Arkansas Rules of Criminal Procedure provides that a petition may be amended with leave of the court before the court acts upon the petition. Here, appellant's motion for amendment was untimely since the trial court had already ruled on the original petition. See Ford v. State, 278 Ark. 106, 644 S.W.2d 252 (1982) (per curiam).

Even if appellant's amendment had been filed before the trial court acted on his petition, the trial court was not required to provide appellant leave to amend under those circumstances, and certainly was not obliged to permit appellant to raise additional arguments outside of those raised in his original petition. The rule provides that permission to amend is discretionary. Further, Ark. R.Crim. P. 37.2(b) requires all grounds for relief be raised in the original petition. The trial court was not required to allow appellant to raise additional grounds in an amendment although appellant had not yet received the order denying his petition.

Accordingly, we affirm the trial court's ruling.

Affirmed.

1 Issues raised below but not argued on appeal are considered abandoned. Jordan v. State, 356 Ark. 248, 256, 147 S.W.3d 691, 696 (2004). It appears that appellant abandoned his claim related to failure to adequately prepare for the trial.

2 The trial court actually drafted and dated the order three days before appellant filed his motion to amend.