{ "id": 1655516, "name": "STATE of Arkansas v. Maurice CLEMMONS", "name_abbreviation": "State v. Clemmons", "decision_date": "1998-10-08", "docket_number": "CR 98-296", "first_page": "440", "last_page": "444", "citations": [ { "type": "official", "cite": "334 Ark. 440" }, { "type": "parallel", "cite": "976 S.W.2d 923" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "334 Ark. 134", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1655534 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/334/0134-01" ] }, { "cite": "330 Ark. 324", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298611 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0324-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "332 Ark. 207", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 377601 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "211" }, { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/ark/332/0207-01" ] }, { "cite": "332 Ark. 241", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 377597 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/332/0241-01" ] }, { "cite": "303 Ark. 265", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882789 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "267-269" }, { "page": "928-929" } ], "opinion_index": 0, "case_paths": [ "/ark/303/0265-01" ] }, { "cite": "60 F.3d 457", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 12039344 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/f3d/60/0457-01" ] } ], "analysis": { "cardinality": 481, "char_count": 7847, "ocr_confidence": 0.776, "pagerank": { "raw": 1.0539155782524529e-07, "percentile": 0.5548140065308826 }, "sha256": "38c50408fa8708c5e6d944cb099d4c287b0486f03a5da302ef5e0c18ff581e4a", "simhash": "1:4fe8c97ef2315b65", "word_count": 1261 }, "last_updated": "2023-07-14T20:44:18.632081+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE of Arkansas v. Maurice CLEMMONS" ], "opinions": [ { "text": "Tom Glaze, Justice.\nAppellant Maurice Clemmons acquired four felony convictions and a revocation of probation during a period from September 1989 to mid-February 1990, and all five of those proceedings became the subject matter of Clemmons\u2019s application for writ of habeas corpus in the U.S. District Court, Eastern District, in 1996. See Clemmons v. Norris, PB-C-96-19 slip op. (F.3d March 26, 1996). In the federal proceeding, the district court, relying largely on Robinson v. Norris, 60 F.3d 457 (8th Cir. 1995), held Clemmons\u2019s right to counsel was violated in each of the five state convictions, and directed that a writ of habeas corpus should issue unless Clemmons was allowed to pursue postconviction proceedings in state court. Id. The Pulaski County Circuit Court, First Division, duly afforded Clemmons postconviction proceedings relating to his prior five convictions and denied him relief in all but one. The case in which the trial court granted a new trial was his February 23, 1990 conviction for burglary and theft of property which had been affirmed on direct appeal in Clemmons v. State, 303 Ark. 265, 795 S.W.2d 927 (1990). The circuit court found that Clemmons was denied the right to effective assistance of counsel because his trial attorney in the burglary and theft case failed to request the trial judge\u2019s recusal. The State brings this appeal from the circuit court\u2019s granting of postconviction relief. See State v. Herred, 332 Ark. 241, 964 S.W.2d 391 (1998); State v. Slocum, 332 Ark. 207, 964 S.W.2d 388 (1998).\nIn Slocum, we discussed Strickland v. Washington, 466 U.S. 668 (1984), and its required two-part standard for evaluating claims of ineffective assistance of counsel: (1) the defendant must show that counsel\u2019s representation fell below an objective standard of reasonableness; and (2) counsel\u2019s deficient performance prejudiced the defense. 332 Ark. at 210, 964 S.W.2d at 390. Here, Clemmons failed to meet either prong of the Strickland test.\nIn this appeal, this court will only reverse a circuit court\u2019s granting of postconviction relief if that court\u2019s decision is clearly erroneous. Slocum, 332 Ark. at 211, 964 S.W.2d at 390. Thus, we initially examine the lower court\u2019s order to review why that court granted Clemmons a new trial. That order reads as follows:\nThis court believes that there is merit to [Clemmons\u2019s] claim that counsel should have asked the presiding judge to recuse, since prior to the beginning of the trial, the trial judge indicated in the record that he believed he had been threatened by [Clemmons], Even though the jury would decide issues of guilt or innocence, and further would decide on the length of punishment, because the judge had sole discretion on whether a sentence would be run concurrently or consecutively, and because a judge would make evidentiary rulings throughout the trial and decide on jury instructions, the importance of an unbiased judge is axiomatic. The fact that the trial judge stated that the petitioner had threatened him was enough to raise questions of bias and prejudice. The failure of counsel to seek the judge\u2019s recusal constitutes ineffective assistance of counsel in violation of [Clemmons\u2019s] Sixth Amendment right to counsel. (Emphasis added.)\nThe circuit court made its foregoing findings and decision to grant postconviction relief based on pretrial events that occurred at Clemmons\u2019s burglary and theft trial held before Judge Floyd Lofton. Clemmons\u2019s defense counsel, Llewellyn J. Marczuk, testifying at the postconviction hearing, related that, at the earlier trial, a security guard had reported to Judge Lofton that Clemmons had taken a hinge from one of the courtroom doors, hid it in his sock, and intended to use it as a weapon. The hinge was found and taken from him before he harmed anyone. In another incident, Clemmons extracted a lock from a holding cell, and he later threw the lock which hit his mother. During this second episode, Clemmons purportedly threatened Judge Lofton. In a third incident, Clemmons reportedly reached for a guard\u2019s pistol during his transportation to the courtroom. Based on these occurrences, Judge Lofton placed Clemmons in leg irons and seated a uniformed officer near him during trial. This court upheld Judge Lofton\u2019s remedial actions in Clemmons. 303 Ark. at 267-269, 795 S.W.2d at 928-929.\nMarczuk, when testifying why he decided not to request Judge Lofton to recuse after Clemmons threatened the judge, said that he believed the judge would treat Clemmons fairly and opined Judge Lofton was not biased against Clemmons. In fact, Marczuk expressed that, while he did not always agree with what Judge Lofton did, Lofton was consistent and treated everyone the same. In this context, Marczuk further related that Judge Lofton told Clemmons that if he was not guilty, he should go to trial, but if he was guilty and entered a plea, the judge would not hurt him. Marczuk said that the judge\u2019s remarks meant Lofton would run Clemmons\u2019s sentences concurrently, not consecutively.\nUnder Strickland, our review of defense counsel\u2019s performance must be highly deferential, and a fair assessment of his performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel\u2019s conduct, and to evaluate the conduct from the counsel\u2019s perspective at the time. See Slocum, 332 Ark. at 212, 964 S.W.2d at 390. In addition, the standard of the reviewing court is to indulge a strong presumption that counsel\u2019s conduct falls within the wide range of reasonable professional assistance. Id. We have also held on many occasions that a lawyer\u2019s choice of trial strategy that proved ineffective is not a basis for meeting the Strickland test. 332 Ark. at 213, 964 S.W.2d at 391.\nHere, Marczuk was quite familiar with how Judge Lofton conducted his court, and he expressed confidence the judge would be fair to Clemmons even though Clemmons\u2019s actions during trial evoked placing him in leg irons. Moreover, Marczuk was confident that, if Clemmons chose to plead guilty at any stage of the trial, Judge Lofton would treat Clemmons favorably by running his sentences concurrently instead of consecutively. While Marczuk\u2019s trial tactics proved ineffective, his choice of strategy in no way showed his representation fell below the objective standard of reasonableness prescribed by Strickland.\nEven if defense counsel Marczuk\u2019s performance could have been in some way deficient, the circuit court failed to state how that purported deficiency prejudiced Clemmons. As we held in Lammers v. State, 330 Ark. 324, 955 S.W.2d 489 (1997), unless there is an objective showing of bias, there must be a communication of bias in order to require the recusal for implied bias. No such showing was made here. As previously noted, the circuit court merely concluded that the fact Clemmons threatened Judge Lofton was enough to \u201craise questions of bias and prejudice.\u201d Such reasoning, if adopted, would mean a defendant, by misbehaving in court or confronting the judge, could force the judge\u2019s recusal. We have held that it is impermissible for a party or counsel to create an infirmity for purposes of requiring a judge\u2019s recusal. See Seeco, Inc. v. Hales, 334 Ark. 134, 969 S.W.2d 193 (1998).\nFor the foregoing reasons, we hold that the circuit court was clearly erroneous in granting Clemmons a new trial because no showing was made that defense counsel\u2019s performance was deficient as required under Strickland, or that Clemmons was prejudiced by counsel\u2019s deficient representation. Therefore, the trial court is reversed.", "type": "majority", "author": "Tom Glaze, Justice." } ], "attorneys": [ "Winston Bryant, Att\u2019y Gen., by: C. Joseph Cordi, Jr., Ass\u2019t Att\u2019y Gen., for appellant.", "No brief filed." ], "corrections": "", "head_matter": "STATE of Arkansas v. Maurice CLEMMONS\nCR 98-296\n976 S.W.2d 923\nSupreme Court of Arkansas\nOpinion delivered October 8, 1998\nWinston Bryant, Att\u2019y Gen., by: C. Joseph Cordi, Jr., Ass\u2019t Att\u2019y Gen., for appellant.\nNo brief filed." }, "file_name": "0440-01", "first_page_order": 466, "last_page_order": 470 }