Opinion
CR 09-213
Opinion Delivered January 20, 2011
Appeal from the Pulaski County Circuit Court, CR 2007-163 CR 2007-177, Hon. Barry Sims, Judge, Affirmed.
Appellant Earnest Chambliss was found guilty by a Pulaski County jury of two counts each of aggravated robbery and theft of property arising from the aggravated robbery of two different banks, two days apart. The charges were joined for trial. The sentences on all counts were enhanced for use of a firearm pursuant to Arkansas Code Annotated section 16-90-120 (2010). An aggregate term of fifty-six years' imprisonment was imposed. The Arkansas Court of Appeals affirmed. Chambliss v. State, CACR 08-210 (Ark. App. Oct. 1, 2008) (unpublished).
Appellant timely filed a pro se petition for postconviction relief in circuit court under Arkansas Rule of Criminal Procedure 37.1 (2010). Appellant contended in the petition that he was not afforded effective assistance of counsel at trial because his attorney failed to request a severance of the charges. He specifically argued that the jury was permitted to hear evidence of both robberies and, therefore, was allowed to use evidence of one crime in order to convict him of another. The circuit court denied the petition, and appellant brings this appeal.
The order stated that "[t]he decision of whether or not to seek severance of certain charges is a matter of trial strategy." It is well established the that the right to counsel, guaranteed by the Sixth Amendment to the United States Constitution, is the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The United States Supreme Court has held that the question in determining whether an attorney rendered constitutionally ineffective assistance of counsel is "whether the counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. Accordingly, to prove a right to postconviction relief based on a claim of ineffective assistance of counsel, a criminal appellant must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's particular errors actually had an effect on the defense. Id. at 688, 693.
There is also a strong presumption that the trial counsel's decisions fall within the wide range of reasonable professional assistance. Lee v. State, 2009 Ark. 255, 308 S.W.3d 596. The appellant has the burden of overcoming the presumption by identifying specific acts and omissions that, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Id. However, according to the second prong of the Strickland test, even if counsel's conduct is shown to be professionally unreasonable, the judgment will stand unless the appellant can demonstrate that the error had an actual prejudicial effect on the outcome of the proceeding. Id.
On review, this court will not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous. Echols v. State, 2010 Ark. 417, ___ S.W.3d ___.A finding is clearly erroneous, 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 made. Anderson v. State, 2009 Ark. 493 (per curiam).
In this case, it is clear that the decision about whether to seek a severance was a matter of trial strategy. Kemp v. State, 348 Ark. 750, 74 S.W.3d 224 (2002). At an omnibus hearing, appellant's counsel and the prosecutor made a joint motion to join the two cases for trial. Appellant's counsel stated that by joining the cases, the appellant would not face "the second strike minimum 40," a reference to Arkansas Code Annotated section 5-4-501(c)(1)(A) (Repl. 2006 Supp. 2007). Under section 5-4-501(c)(1)(A), if appellant had been convicted of the crimes charged in connection with the first robbery and subsequently convicted of the crimes charged in the second robbery, he would be subject to a minimum of forty years' imprisonment for the second conviction. The appellant's counsel's statements at the hearing establish that the decision to try the charges together was one of trial strategy. Where the trial court has determined a decision by counsel was a matter of trial tactics or strategy, and that decision is supported by reasonable professional judgment, then counsel's decision is not a basis for relief under Rule 37.1. See Weatherford v. State, 363 Ark. 579, 215 S.W.3d 642 (2005) (per curiam). As such, appellant was not entitled to postconviction relief, and the circuit court did not err in denying the petition.
Affirmed.