Charles Lee Millsap, Jr. v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

SEPTEMBER 21, 2000

CR 99-437

CHARLES LEE MILLSAP, JR. AN APPEAL FROM THE CIRCUIT

APPELLANT COURT OF PULASKI COUNTY,

SEVENTH DIVISION

NO. CR 97-865

VS.

STATE OF ARKANSAS HONORABLE JOHN B. PLEGGE,

CIRCUIT JUDGE

APPELLEE

MOTION TO WITHDRAW GRANTED; JUDGMENT AFFIRMED

Appellant, Lee Charles Millsap, pleaded guilty to capital murder, terroristic threatening, and second degree battery. He was sentenced to life imprisonment without the possibility of parole and two six year terms to run concurrent with his life sentence. Appellant filed a Rule 37 petition challenging his confession and trial counsel's performance. The trial court denied appellant's petition. Millsap's court-appointed counsel has filed a motion to withdraw and a brief stating that there is no merit to the appeal. Counsel has filed the motion and brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(j). Under the Rule, a court-appointed attorney who wishes to withdraw from an appeal must abstract and brief all of the rulings that were adverse to his client. Although such a "no-merit" brief is typically filed in a direct appeal from a judgment, we have also allowed the filing of no-merit briefs in postconviction appeals. See Riley v. State, 298 Ark. 292, 766 S.W.2d 921 (1989).

After the filing of a no-merit brief, the appellant has thirty days to raise additional arguments in a pro-se brief. Ark. Sup. Ct. R. 4-3(j). Millsap has filed a pro se brief. The State agrees with appellant's attorney's that there is no merit to the appeal.

In this case, the only ruling that was adverse to Millsap was the denial of his Rule 37 petition. In the written order that was filed, the Circuit Court denied relief on the basis that Millsap's plea was entered knowingly, intelligently and voluntarily with the assistance of competent counsel. In the no-merit brief, counsel argues that the Circuit Court's order was not clearly erroneous. We agree.

In claims of ineffective assistance of counsel, the petitioner has the burden of overcoming the presumption of his counsel's competence. Franklin v. State, 293 Ark. 225, 736 S.W.2d 16 (1987). When a guilty plea is challenged, the sole issue is whether the plea was intelligently and voluntarily entered with the advice of competent counsel. Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981). The appellant has the heavy burden of establishing that counsel's advice was not competent. United States v. Cronic, 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984); Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984). Ineffective assistance of counsel with regard to a guilty plea can be shown only by pointing to specific errors by counsel. Crockett v. State, supra. The appellant must demonstrate that there is a reasonable probability that but for counsel's errors, he would not have pleaded guilty. Hudson v. State, 294 Ark. 148, 741 S.W.2d 253 (1987). A defendant whose conviction is based on a plea of guilty ordinarily will have difficulty in proving prejudice since his plea rests on the admission in court that he did the act with which he ischarged. Crockett v. State, supra. On appeal, we affirm the trial court's denial of postconviction relief unless it is clearly erroneous. Hudson v. State, supra.

Millsap argued in his Rule 37 petition that his plea was not knowing, voluntary, and intelligent because he did not receive competent representation from his defense attorney. Specifically, Millsap argued that his attorney should have argued that his plea was not knowing or voluntary because he was under the influence of prescription drugs. At the Rule 37 hearing, counsel testified that appellant had mentioned that he had taken Valium on the day of the murder and that he had begun taking the medication while in the military. According to counsel; however, appellant did not state that the medication had caused any psychosis or hallucinations. Additionally, counsel testified that he never observed appellant in a psychotic state or having hallucinations.

The Circuit Court relied on Millsap's statements during the plea hearing to find that the agreement was read and explained to him, and that his plea was not obtained through coercion, intimidation, or threats. We also consider these facts on review. Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981). The Circuit Court apparently found that Millsap's testimony and the evidence he presented regarding the voluntariness of his plea were not credible when compared to his responses to the court's inquiries during the plea hearing. This ruling was not clearly erroneous.

Appellant also argued in his petition that counsel waived appellant's right to a psychiatric exam which deprived appellant of an insanity defense. Counsel testified at the Rule 37 hearing that he attempted to obtain a second evaluation for appellant, but appellant could not afford thecost of a psychiatrist. Counsel then requested funds from the court for the retention of another psychiatrist. The court denied counsel's request.

The Circuit Court, in denying Skinner's ineffective assistance of counsel claim, evidently found the attorneys' testimony to be more credible. Conflicts in testimony are for the trial judge to resolve, and he is not required to believe any witness's testimony, especially the testimony of the accused since he has the most interest in the outcome of the proceedings. Huff v. State, supra. In addition, the trial court relied on its own observations of appellant at the plea hearing. The trial court noted:

That this Court personally addressed this defendant on May 14, 1998 at his guilty plea and the defendant stated he was not on any medication at that time; that he was satisfied with the services of his attorney; that he understood he waived his right to appeal the charges against him; that he had not been threatened or promised anything in exchange for his guilty plea.

That this Court recognizes and acknowledges that trial counsel, Bill Luppen, is one of the premier criminal defense attorneys in the State of Arkansas and his actions in representing the defendant were well within the range of competency demanded of attorneys in criminal cases.

Appellant's final points in his petition where that trial counsel should have pursued an insanity defense and that counsel failed to investigate witnesses that would support an insanity defense. At the Rule 37 hearing, counsel testified that they had discussed an insanity defense, and he pursued that defense up until the time appellant pled guilty. According to counsel, he was unable to obtain an expert to refute the evidence put forth by the State. Counsel also testified that he did not interview a person mentioned by appellant because he believed that the testimony would be of no benefit based on appellant's behavior the day of the murder.

Questions of trial strategy are matters of professional judgment about which experienced advocates could engage in endless debate. Dudley v. State, 285 Ark. 160, 685 S.W.2d 170 (1985). Decisions regarding witness testimony are matters of trial strategy. See Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998); Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996). As a result, such questions are not cognizable under Rule 37. Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973).

Appellant filed a pro se brief as permitted by Ark. Sup. Ct. R. 4-3(j). However, appellant's brief does not set forth any arguments challenging the denial of his Rule 37 petition or any specific challenges that his trial counsel was ineffective. Appellant has only set forth arguments and factual matters that should have been pursued below.

From a review of the record and briefs before this court, we find the appeal to be without merit. Accordingly, counsel's motion to be relieved is granted and the judgment is affirmed.

Motion to withdraw granted; judgment affirmed.