Jermaine Bohanon v. State of Arkansas

Cite as 2021 Ark. App. 296
Elizabeth Perry ARKANSAS COURT OF APPEALS
I attest to the accuracy and
integrity of this document DIVISION I
2023.06.28 11:32:33 -05'00' No. CR-20-636
2023.001.20174
Opinion Delivered June 2, 2021
JERMAINE BOHANON
APPELLANT APPEAL FROM THE CRITTENDEN
COUNTY CIRCUIT COURT
[NO. 18CR-14-897]
V.
HONORABLE KEITH CHRESTMAN,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

LARRY D. VAUGHT, Judge

Jermaine Bohanon appeals from the Crittenden County Circuit Court’s denial of his

petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1

(2020). We affirm.

On December 22, 2014, Bohanon pled guilty in the Crittenden County Circuit Court,

case No. 18CR-14-897, to possession of a controlled substance, a Class C felony, and

furnishing, possessing, or using prohibited articles, a Class B felony. He was sentenced to six

years’ imprisonment in the Arkansas Department of Correction (ADC) and seventy-two

months’ suspended imposition of sentence (SIS).

On April 19, 2018, Bohanon was arrested following a traffic stop in which officers

found sixty-seven grams of marijuana, twelve grams of powder cocaine, less than two grams

of rock cocaine, eight codeine pills, eight cyclobenzaprine pills, a black .44 magnum handgun,

digital scales, his driver’s license, and his Social Security card in a backpack that was located
under his legs in the vehicle when it was pulled over. On April 1, 2019, the State filed a petition

to revoke Bohanon’s SIS, alleging that he had violated the terms and conditions of his SIS by

failing to pay fines, costs, restitution, and fees and by failing to live a law-abiding life as

evidenced by the April 19 arrest. The circuit court held a revocation hearing on April 2, 2019,

during which it found that Bohanon had violated the terms of his SIS by committing new

crimes. He was sentenced to 180 months’ incarceration. He appealed, and his appointed

counsel filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967). We affirmed

the revocation of his SIS on January 15, 2020, in Bohanon v. State, 2020 Ark. App. 22, 594

S.W.3d 92.

On February 28, 2020, Bohanon filed in the circuit court a petition for postconviction

relief pursuant to Rule 37.1. In his petition, he alleged four instances of ineffective assistance

of counsel: (1) counsel failed to move for dismissal of the revocation hearing because it was

held more than sixty days after the date of his arrest; (2) counsel failed to object to improper

notice of the revocation hearing; (3) counsel failed to proffer excluded evidence; and (4)

counsel failed to assert Bohanon’s right to allocution before sentencing. The circuit court

denied his petition without a hearing in an order issued on May 26. This appeal follows.

We will not reverse a circuit court’s decision denying postconviction relief unless the

circuit court’s findings are clearly erroneous. King v. State, 2018 Ark. App. 605, at 5, 566 S.W.3d

165, 168. To prove ineffective assistance of counsel, the petitioner must show that counsel’s

performance was deficient, meaning counsel’s performance fell below an objective standard

of reasonableness, and that the deficiency prejudiced the defense. Jamett v. State, 2010 Ark. 28,

at 3–4, 358 S.W.3d 874, 876–77 (per curiam).

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Bohanon’s first argument on appeal is that his revocation hearing was not held within

sixty days after his arrest, in violation of Arkansas Code Annotated section 16-93-307 (Repl.

2016). While his petition for postconviction relief presented this argument as a matter of

ineffective assistance of counsel, on appeal Bohanon never mentions ineffective assistance

when arguing for reversal based on the statute’s sixty-day requirement. Instead of applying the

appropriate tests and standards for analyzing a claim of ineffective assistance, Bohanon’s brief

simply asserts that his hearing was held more than sixty days after he was arrested on the new

charges. While such an argument may be appropriate for direct appeal, it is not cognizable as

a basis for postconviction relief under Rule 37. Ortega v. State, 2017 Ark. 365, at 2, 533 S.W.3d

68, 71 (“Assertions of trial-court error, even those of constitutional dimension, must be raised

at trial and on direct appeal.”). By converting his argument from one of ineffective assistance

of counsel to a direct challenge to the timeliness of his hearing, Bohanon has abandoned his

ineffective-assistance argument.

Moreover, because he failed to address the elements necessary for demonstrating

ineffective assistance, Bohanon has not presented a persuasive argument that would warrant

reversal. Effectiveness of counsel is assessed under the standard set forth in Strickland v.

Washington, 466 U.S. 668 (1984). “The benchmark for judging any claim of ineffectiveness

must be whether 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.” Strickland, 466 U.S.

at 686. There is a strong presumption that trial counsel’s conduct falls within the wide range

of reasonable professional assistance, and the petitioner has the burden of overcoming this

presumption. Hayes v. State, 2011 Ark. 327, at 2, 383 S.W.3d 824, 827. The petitioner must then

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demonstrate that counsel’s deficient performance prejudiced his defense, such that there is a

reasonable probability that, but for counsel’s deficient performance, the result of the

proceeding would have been different. Id.

The Arkansas Supreme Court has held that “the petitioner bears the burden of

overcoming a presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Howard v. State, 367 Ark. 18, 32, 238 S.W.3d 24, 35 (2006); Miller v.

State, 2020 Ark. App. 270, at 4, 599 S.W.3d 398, 401. The petitioner must identify 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. Isom v. State, 2010 Ark. 495, at 2–3,

370 S.W.3d 491, 492–93. In appeals of postconviction proceedings, this court will not reverse

a circuit court’s decision granting or denying postconviction relief unless it is clearly erroneous.

State v. Brown, 2009 Ark. 202, at 8, 307 S.W.3d 587, 593.

Even assuming that Bohanon intended to present his argument about the timeliness of

the hearing as an ineffective-assistance issue, he has not demonstrated that counsel’s failure to

object to the timing of the hearing amounts to ineffective assistance. For example, Bohanon

has not addressed whether counsel’s decision not to raise this issue before the circuit court

could have been the result of the attorney’s reasoned professional judgment. The State argues

that the time limit provided in section 16-93-307 begins to run when “[a] defendant [is]

arrested for violation of suspension or probation,” not when, as here, the defendant is arrested

on new crimes that then form the basis for a revocation petition. Ark. Code Ann.

§ 16-93-307(a)(1). Moreover, the State contends that the statute is aimed at preventing people

from languishing in jail for extended periods of time while awaiting a revocation hearing, but

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where, as in this case, the probationer was not confined due to a revocation hold but was

instead incarcerated on other charges, failing to hold the hearing within sixty days does not

prejudice the defendant. Green v. State, 29 Ark. App. 69, 70, 777 S.W.2d 225, 226 (1989).

Because Bohanon has provided no argument as to whether counsel’s actions fell within the

wide range of reasonable professional assistance and has not demonstrated prejudice from

counsel’s failure to object, his apparent abandonment of his ineffective-assistance argument

renders his arguments about the timeliness of the hearing meritless.

Bohanon’s second point on appeal challenges the sufficiency of the notice he received

regarding his revocation hearing. Again, the majority of Bohanon’s appellate argument

regarding notice consists of impermissible direct attacks on the validity of the revocation order

rather than allegations of ineffective assistance of counsel. Bohanon makes a single mention

of his attorney’s performance, arguing that “counsel should have objected and moved for

dismissal” based on insufficient notice, but he again fails to address or apply the relevant legal

standards necessary for an ineffective-assistance claim. Bohanon’s argument regarding the

notice he received prior to the hearing falls far short of demonstrating ineffective assistance

of counsel. Among other shortcomings, Bohanon’s notice argument fails to assert that

counsel’s performance was outside the scope of reasonable professional judgment and fails to

demonstrate that the alleged deficiency prejudiced him.

Third, Bohanon argues that he was not afforded the opportunity to make an allocution

statement during his revocation hearing. As with the previous claims, Bohanon does not

present this as an ineffective-assistance issue and instead treats it as a direct attack on the

revocation order. This argument fails for the same reasons set out above.

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As to all three points on appeal, Bohanon has either abandoned his ineffective-

assistance argument or fatally failed to develop the legal analysis related to counsel’s alleged

shortcomings. We therefore affirm the circuit court’s denial of his petition for postconviction

relief.

Affirmed.

GLADWIN and BROWN, JJ., agree.

Jermaine Bohanon, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Michael L. Yarbrough, Ass’t Att’y Gen., for appellee.

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