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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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