The opinion
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SUPREME COURT OF ARKANSAS.
No. CR-15-274
JONATHAN BERKS Opinion Delivered October 27, 2016
APPELLANT
PRO SE APPEAL FROM THE GARLAND
V. COUNTY CIRCUIT COURT
[NO. 26CR-10-248]
STATE OF ARKANSAS
APPELLEE HONORABLE JOHN HOMER
WRIGHT, JUDGE
AFFIRMED.
PER CURIAM
In 2013, the Arkansas Court of Appeals affirmed a judgment reflecting appellant
Jonathan Berks’s convictions on charges of second-degree murder and aggravated robbery
and his consecutive sentences of thirty years’ imprisonment for each of the two charges.
Berks v. State, 2013 Ark. App. 203, 427 S.W.3d 98. After the mandate issued, Berks filed
in the trial court a timely, verified petition under Arkansas Rule of Criminal Procedure 37.1
(2015) that challenged the same judgment. The trial court granted Berks’s motion to file
an amended and overlength petition, and later denied and dismissed the petition. Berks
filed a request that the order be modified to include omitted issues, and the trial court also
denied that motion, finding that the order had adequately addressed the issues in question.
This court granted Berks’s motion for belated appeal of the order on the basis that the trial
court had not provided Berks with prompt notice of the order denying the motion for a
ruling on omitted issues. Berks v. State, 2015 Ark. 234, 463 S.W.3d 289 (per curiam). That
appeal is now before us, and we affirm.
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Berks raises three points on appeal, as follows: (1) that the trial court erred in finding
that Berks’s claim that counsel was ineffective for counseling him to reject a plea offer was
outside the purview of a Rule 37.1 petition; (2) that the trial court misconstrued his claim
concerning evidence of mental defect and disease; and (3) that the trial court’s order was
inadequate under Arkansas Rule of Criminal Procedure 37.3(a) in that it did not specify the
parts of the files or records relied upon for the court’s findings. We address the adequacy
of the order first.
Under Arkansas Rule of Criminal Procedure 37.3, in order to summarily deny a
Rule 37.1 petition without a hearing, the trial court is required to make written findings of
fact, which specify any parts of the files or records that are relied on to sustain the court’s
findings, and those findings must conclusively show that the petitioner is entitled to no
relief. Beverage v. State, 2015 Ark. 112, 458 S.W.3d 243. This court affirms the denial of a
Rule 37.1 petition notwithstanding the trial court’s failure to make sufficient findings under
Rule 37.3(a) only in two circumstances: (1) when it can be determined from the record
that the petition is wholly without merit, or (2) when the allegations in the petition are such
that it is conclusive on the face of the petition that no relief is warranted. Turner v. State,
2016 Ark. 96, 486 S.W.3d 757. It is not, however, incumbent on this court to scour the
record in a Rule 37 appeal to determine if the petition is wholly without merit. Id. The
failure to make sufficient written findings is reversible error. Sanders v. State, 352 Ark. 16,
98 S.W.3d 35 (2003).
In this case, some confusion arose from the fact that the trial court’s order addressed
all issues raised in the original Rule 37.1 petition, and not just the two issues in the amended
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petition. The amended petition had culled the vital issues to only two of those claims
originally raised, and the trial court’s order declining to modify the order indicated that the
order, while addressing these other issues as well, fully addressed the two issues that were
raised in the amended petition. As discussed in depth below, the trial court’s findings
concerning those two issues were either adequate for our review or the allegations in the
petition were such that it was conclusive that no relief was warranted.
In his first point on appeal and his first claim in the amended Rule 37.1 petition,
Berks alleges that counsel was ineffective for counseling him to reject a plea offer. Berks
asserts that the trial court incorrectly found that this issue was not within the purview of
Rule 37 proceedings because the decision to make such a recommendation was a strategic
one. Although the trial court did not identify a basis for its finding that the decision was a
strategic one, Berks’s allegations in the petition are such that it is conclusive no relief was
warranted on those allegations.
This court will not reverse a trial court’s decision granting or denying postconviction
relief unless it is clearly erroneous. Houghton v. State, 2015 Ark. 252, 464 S.W.3d 922. 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. Turner, 2016 Ark. 96, 486 S.W.3d 757.
Our standard for ineffective-assistance-of-counsel claims is the two-prong analysis set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Rasul v. State, 2015 Ark. 118, 458
S.W.3d 722. To prevail on a claim of ineffective assistance of counsel, the petitioner must
show that (1) counsel’s performance was deficient and (2) the deficient performance
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prejudiced his defense. Mister v. State, 2014 Ark. 446. Unless a petitioner makes both
showings, the allegations do not meet the benchmark on review for granting relief on a
claim of ineffective assistance. Houghton, 2015 Ark. 252, 464 S.W.3d 922.
Defendants have a Sixth Amendment right to counsel, and that right extends to the
plea-bargaining process. Lafler v. Cooper, 132 S. Ct. 1376 (2012). Where trial counsel’s
performance is deficient in recommending that the defendant reject a plea offer, the
Strickland test is satisfied where the claimant shows a reasonable probability that, but for the
defective performance, he and the trial court would have accepted the guilty plea. Id.
Counsel is presumed effective, and allegations without factual substantiation are
insufficient to overcome that presumption. Henington v. State, 2012 Ark. 181, 403 S.W.3d
55. A petitioner claiming deficient performance must show that counsel’s representation
fell below an objective standard of reasonableness, and this court must indulge in a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance. Id. A petitioner has the burden of overcoming the presumption that counsel is
effective 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.
Berks alleged in the petition that his attorney had brought him an offer from the
prosecution for a deal in which the robbery charge was nolle prossed and the State
recommended a thirty-year sentence on the murder charge.1 Berks alleged that he was
1
As the State contends, the record reflects that no formal plea offer was made, but
that there were “communications.” As indicated, we determine that, regardless, Berks’s
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facing potential sentences of life plus thirty years if he went to trial and that he was willing
to accept the offer, but that counsel convinced him that “even if convicted he would receive
a sentence less than 30 years.” Berks’s claim was that he would have accepted the plea offer
and would not have rejected the offer but for the faulty advice. To support his allegation
of prejudice, Berks points out that, on conviction, he received an aggregate sentence of 60
years’ imprisonment, which was longer than the proposed plea deal.
Berks did not contend that he had not been correctly advised of the maximum
potential sentences on the charges if he chose to go to trial, and, instead, he alleged that trial
counsel had made an erroneous strategic prediction about the outcome of the trial. Such
an erroneous prediction, by itself, is not sufficient to demonstrate deficient performance.
Henson v. State, 2015 Ark. 302, 468 S.W.3d 264 (per curiam) (citing Lafler, 132 S. Ct. 1376).
Although Berks asserted that the decision to recommend such an outcome at trial was
unreasonable because there was gruesome evidence available demonstrating that he had
beaten the victim to death, evidence was also presented that Berks believed that the victim
had molested his children. Berks, 2013 Ark. App. 203, 427 S.W.3d 98. As we have noted,
the Constitution guarantees only that counsel be competent, not omniscient. Robinson v.
State, 2016 Ark. 211, 492 S.W.3d 77. Berks failed to plead facts sufficient to support his
allegations that counsel’s strategic prediction about the outcome of the trial was
allegations were without merit, and it is therefore not necessary for us to determine under
what circumstances an offer made informally may be considered or whether the court would
have accepted the offer if formalized.
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unreasonable, and the denial of postconviction relief on this issue was therefore not clearly
erroneous.
Berks’s second claim in the amended petition, which is also the basis for his remaining
point on appeal, alleged that counsel was ineffective because she was unaware of Berks’s
history of mental problems and therefore failed to utilize this information, that is, more
specifically, that she failed to raise a diminished-capacity defense. Berks attached to the
amended petition what appeared to be a portion of a doctor’s report concerning Berks’s
mental condition in 1985. The trial court’s order denying postconviction relief indicated
that Berks had been evaluated by the Arkansas State Hospital and private psychologists
before trial, that there was nothing in the record to support a mental disease or defect
defense, and that the testimony at trial by Dr. James Moneypenny did not support a finding
that Berks was not competent or incapable of forming the requisite criminal intent or
conforming his behavior to the requirements of the law. Dr. Moneypenny was one of two
mental-health expert witnesses called by the defense at trial. Berks takes the position on
appeal that these findings failed to address the issue because the trial court did not consider
what was lacking in Dr. Moneypenny’s testimony and that his allegations supported a finding
of ineffective assistance of counsel.
As the State points out in its brief, the trial record establishes that counsel was aware
of Berks’s past treatment and that she considered but rejected presenting the affirmative
defense of mental disease or defect. We may take judicial notice of the record from the
earlier appeal without need to supplement the record. Adkins v. State, 2015 Ark. 336, 469
S.W.3d 790 (per curiam). Counsel filed a notice of intent to raise such a defense, and she
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had Berks examined by three mental-health experts before reaching the ultimate decision
to base the defense at trial on Berks’s not having committed the crime, thereby choosing
not to pursue the mental-disease-or-defect defense.
Although the affirmative defense was not raised at trial, following Berks’s conviction,
trial counsel presented two of the private experts retained by the defense, Dr. Moneypenny,
a psychologist, and Dr. Bob Gayle, a psychiatrist practicing forensic neuropsychiatry, during
the sentencing phase of the trial. Contrary to Berks’s allegation that counsel was unaware
of his mental-health history, counsel elicited testimony from Dr. Gayle that referenced the
1985 evaluation and treatment Berks contends counsel overlooked. The same treatment
was also referenced in Dr. Paul Deyoub’s evaluation report concerning Berks’s mental
health. Dr. Deyoub was a forensic psychologist, acting as the State’s expert, who filed his
report in the trial court several months before trial.
A defendant who would assert the affirmative defense of mental disease or defect
must show that, at the time he engaged in the charged conduct, he lacked the capacity to
(1) conform his conduct to the requirements of the law or (2) appreciate the criminality of
his conduct. Ark. Code Ann. § 5-2-312 (Repl. 2013); State v. Lacy, 2016 Ark. 38, 480
S.W.3d 856. Dr. Deyoub specifically addressed the question of whether Berks qualified
under the legal criteria of the statute, and, although he considered Berks’s history of
treatment in his evaluation, he concluded that Berks failed to meet the criteria of the statute.
Both Dr. Moneypenny and Dr. Gayle testified that they had not evaluated Berks to
determine whether he met the statute’s criteria. Although Dr. Gayle specifically referenced
having considered Berks’s history of treatment, and, although he cautioned that he had not
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conducted his evaluation for that purpose, Dr. Gayle also indicated that, based on the
information that he had available to him, he could not have determined that Berks met the
criteria for the affirmative defense. Berks provided no supporting facts to establish that Dr.
Moneypenny did not have the same treatment history available to him or that he may have
reached a different conclusion had he evaluated Berks on the issue.
Berks’s allegations of ineffective assistance for this claim failed to meet his burden of
overcoming the presumption that counsel is effective 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. Berks contends that his treatment
history was sufficient to support a mental-disease-or-defect defense. Bald statements of a
history of psychiatric treatment, however, are not sufficient to establish the existence of a
mental disease or defect. Adkins, 2015 Ark. 336, 469 S.W.3d 790 (citing Nance v. State, 339
Ark. 192, 4 S.W.3d 501 (1999)).
Two different experts, one whom the defense retained, were unable to determine
that Berks met the criteria for the affirmative defense, despite considering the very
information that Berks alleged counsel had failed to utilize. Although Berks contends that
it was not reasonable judgment to forgo the mental-disease-or-defect defense, as the trial
court correctly noted, the trial record contradicts Berks’s claim that counsel had a valid basis
to support that defense. Where a petitioner would assert ineffective assistance for failure to
make an argument, the petitioner must show that the argument would have been
meritorious because the failure to make an argument without merit is not ineffective
assistance of counsel. Sims v. State, 2015 Ark. 363, 472 S.W.3d 107. Berks made no such
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showing. Therefore the trial court’s findings on this final point were sufficient for our
review, and we affirm the denial of postconviction relief.
Affirmed.
Jonathan Berks, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
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