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                 SUPREME COURT OF ARKANSAS
                                        No.   CR-16-487

                                                  Opinion Delivered: February   9, 2017

CHRISTOPHER BEVERAGE
                    APPELLANT APPEAL FROM THE JEFFERSON
                               COUNTY CIRCUIT COURT
V.                             [NO. 35CR-10-83, 35CR-10-602,
                               35CR-11-423, 35CR-12-346]
STATE OF ARKANSAS
                      APPELLEE HONORABLE JODI RAINES
                               DENNIS, JUDGE

                                                  AFFIRMED.


                           SHAWN A. WOMACK, Associate Justice


        Charles Beverage appeals from the Jefferson County Circuit Court’s order denying

 his petition for postconviction relief due to ineffective assistance of counsel under Arkansas

 Rule of Criminal Procedure 37.1 (2015). He filed his petition for relief after pleading guilty

 to charges from several different cases including first-degree murder, aggravated robbery,

 first-degree escape, second-degree battery, and theft of property. Beverage argues that,

 because his counsel’s failure to request a competency hearing was both deficient and

 prejudicial, the circuit court erred in denying his petition. For the reasons set out below,

 we affirm the circuit court’s denial of Beverage’s petition.

                                 I.     Facts and Procedural History

        Beverage and two other inmates escaped from a juvenile detention center in January

 2010. During the escape, Beverage assaulted a guard and caused the officer’s fatal heart

 attack. Beverage also assaulted additional employees and stole a vehicle in connection with
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the escape. The remainder of the charges stem from attacks on corrections officers while

Beverage was in custody.

       Beverage’s trial counsel filed an initial motion for mental evaluation after Beverage

had been charged. The circuit court granted the motion. Dr. William Cochran evaluated

Beverage and determined that he was competent to stand trial. Upon receiving that report,

Beverage’s counsel filed a motion for a supplementary forensic evaluation. The circuit court

granted that motion as well. Ron Faupel, a psychologist, also concluded that Beverage was

fit to stand trial. Two months later, Dr. Jill Brush-Strode reached the same determination;

Beverage failed Dr. Brush-Strode’s competency test, but she concluded this was due to his

feigning a lack of understanding. Beverage’s counsel retained Dr. Albert Kittrell to testify

about Beverage’s chances for rehabilitation. Dr. Kittrell did not conduct his own evaluation

of Beverage’s fitness for trial, but he stated that he agreed with the prior evaluators’ reports.

       Beverage pleaded guilty on September 7, 2012, and was sentenced to 600 months’

imprisonment. He filed his motion for postconviction relief on several grounds, including

the instant claim of ineffective assistance of counsel due to his counsel’s failure to request a

competency hearing. The circuit court denied the petition, and this court reversed and

remanded to the circuit court to conduct an evidentiary hearing in light of a gap in the

record. In addition to resolving that issue on remand, the circuit court heard testimony from

Beverage’s mother, who asserted that she had given trial counsel a cache of medical

documents that he did not review.

       The circuit court again denied relief on Beverage’s petition. It explained that, in light

of the independent judgment of three medical professionals and the agreement of Beverage’s


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own witness that he was competent to stand trial, his trial counsel made a reasonable decision

not to pursue the competency question further, and that decision did not prejudice

Beverage.

                                          II.       Analysis

       We review circuit court decisions on Rule 37 petitions for clear error. Adkins v.

State, 2015 Ark. 336, at 1, 469 S.W.3d 790, 794 (per curiam). A finding is clearly erroneous

when, although there is evidence to support it, the appellate court, after reviewing the

entirety of the evidence, is left with the definite and firm conviction that a mistake has been

committed. Id. This court has adopted the United States Supreme Court’s test from

Strickland v. Washington, 466 U.S. 668 (1984), to determine whether or not counsel was

ineffective. Taylor v. State, 2013 Ark. 146, at 5, 427 S.W.3d 29, 32. The Strickland test

requires both (1) that the petitioner’s counsel’s performance was deficient and (2) that the

petitioner was prejudiced by that deficient performance. Strain v. State, 2012 Ark. 42, at 2,

394 S.W.3d 294, 297 (per curiam).

       Beverage’s arguments on appeal all concern his trial counsel’s failure to request a

competency hearing. In order to show that trial counsel’s failure to request a competency

hearing was deficient, Beverage must point to errors that are outside “the wide range of

reasonable professional assistance.” See, e.g., Russell v. State, 2016 Ark. 190, at 2, 490 S.W.3d

654, 658. In order to satisfy the second prong of Strickland, that he was prejudiced, Beverage

must demonstrate that there was a reasonable probability he would have been found

incompetent to plead guilty if the request had been made. See, e.g., Henson v. State, 2011

Ark. 375, at 3 (citing Jones v. State, 355 Ark. 316, 136 S.W.3d 774 (2003)).


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       Failing either prong of Strickland is independently fatal to a Rule 37.1 petition. See,

e.g., Pennington v. State, 2013 Ark. 39, at 2 (per curiam). We see nothing to indicate that the

circuit court clearly erred in finding that Beverage was not prejudiced by his trial counsel’s

decision not to request a competency hearing. Beverage’s attorney moved for and received

an initial evaluation, a second opinion, and a third opinion from different medical

professionals on the issue of his client’s competency. A fourth medical professional—

Beverage’s own witness—agreed with the prior medical assessments that Beverage was

legally competent to stand trial and, consequently, to plead guilty. With three independent

evaluations yielding opinions that Beverage was competent, there is simply no plausible

contention that an additional hearing would have resulted in a ruling that he was

incompetent.

       When a Rule 37.1 petitioner claims that trial counsel prejudiced the petitioner by

failing to press for an additional hearing or raise additional evidence on the issue of

competency, we have held that it is the burden of the petitioner to demonstrate that

“additional evidence would have negated findings already presented.” See Campbell v. State,

283 Ark. 12, 15, 670 S.W.2d 800, 802 (1984). For additional evidence of incompetence,

Beverage submits (1) stray comments from the same medical reports that ultimately

concluded he was competent and (2) the box—full, Beverage claims, of medical

documents—that Beverage’s mother had given trial counsel before Beverage entered his

plea. As with Campbell, it is the burden of the petitioner to “show how the evidence of his

prior history . . . would have negated the findings of the evaluation that had already been

presented.” Id. Because Beverage did not identify how any medical records would have


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overcome the independent determinations of his three medical evaluators, the circuit court

did not clearly err in determining Beverage was not prejudiced by his trial counsel’s decision

not to request a competency hearing.

                                        III.    Conclusion

       Because Beverage failed to demonstrate that any deficiency by his trial counsel was

prejudicial to him, he did not satisfy the Strickland test for ineffective-assistance-of-counsel

claims under Rule 37.1 of the Arkansas Rules of Criminal Procedure. We hold that the

circuit court did not clearly err in denying his petition.

       Affirmed.

       James Law Firm, by: William O. “Bill” James, Jr., and Michael Kiel Kaiser, for appellant.

       Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.




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