Marcellous Cobb v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

October 9, 2003

MARCELLOUS COBB

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-785

APPEAL FROM THE CIRCUIT COURT OF CRAIGHEAD COUNTY, CR 00-135, HONORABLE DAVID N. LASER, JUDGE

AFFIRMED

Per Curiam

Appellant pled guilty to three counts of delivery of a controlled substance, cocaine. The circuit court sentenced him to one hundred twenty-six months' imprisonment, followed by a two hundred forty month suspended imposition of sentence. Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Cr. P. 37 raising claims of ineffective assistance of counsel. The circuit court held a hearing, and denied relief. We affirm.

We do not reverse a trial court's denial of postconviction relief unless the ruling was clearly erroneous. Seek v. State, 330 Ark. 833, 835, 957 S.W.2d 709, 711 (1997). When a guilty plea is challenged under Rule 37, the sole issue is whether the plea was intelligently and voluntarily entered with the advice of competent counsel. Beulah v. State, __ Ark. __, __, 101 S.W.3d 802, 804 (2003); Mills v. State, 338 Ark. 603, 606, 999 S.W.2d 674, 675 (1999). To determine the competency of counsel, we apply the standard adopted in Strickland v. Washington,466 U.S. 668 (1984), in which the petitioner must prove that "counsel's performance fell below an objective standard of reasonableness and that, but for counsel's errors, there is a reasonable probability that the outcome would have been different." Seek, 330 Ark. at 835, 957 S.W.2d at 711 (quoting McCuen v. State, 328 Ark. 46, 58, 941 S.W.2d 397, 403 (1997)). The petitioner carries the burden of overcoming the presumption that counsel is competent. Id. In order to show prejudice, a petitioner must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Buchheit v. State, 339 Ark. 481, 483, 6 S.W.3d 109, 111 (1999). A defendant who has pleaded guilty necessarily has difficulty in establishing prejudice given that his or her conviction is premised on an admission of guilt of the crime charged. State v. Herred, 332 Ark. 241, 251, 964 S.W.2d 391, 397 (1998)(citing Thompson v. State, 307 Ark. 492, 821 S.W.2d 37 (1991)). Ineffective assistance of counsel cannot be established merely by showing that an error was made by counsel or by revealing that a failure to object prevented an issue from being addressed on appeal. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)).

Appellant first contends that the circuit court erred in admitting into evidence at his Rule 37 hearing his trial counsel's time record detailing the amount of time counsel spent on appellant's representation. Counsel testified that he daily kept handwritten time sheets which he gave to office personnel to input into a computer database. The State sought to admit into evidence a computer generated printout of the amount of time counsel spent on appellant's case. The circuit allowed appellant to cross-examine trial counsel about the time record, and appellantobjected to its admission. He argued, as he does on appeal, that the admission of the time record violated the "best evidence" rule because it was a computer generated printout and not the original handwritten time sheet. The circuit court overruled the objection. The appellant further contends on appeal that his cross-examination of trial counsel on the admissibility of the time record was prejudiced because the handwritten time sheet was not made available to him at the hearing.

On appeal, we will not reverse a ruling on the admission of evidence absent an abuse of discretion; nor will we reverse absent a showing of prejudice. Box v. State, 348 Ark. 116, 128, 71 S.W.3d 552, 559-60 (2002). Arkansas Rule of Evidence 1002 (2001), known as the "best evidence" rule, requires the original writing be introduced to prove the content of the writing, except for as otherwise provided in the Rules of Evidence. If data is stored in a computer, the definition of an "original" writing includes any printout readable by sight shown to reflect the data accurately. Ark. R. Evid. 1001(3) (2001). An original writing is not required when the writing is not closely related to a controlling issue. Ark. R. Evid. 1005(4) (2001).

In addition to representing appellant, appellant's trial counsel represented other individuals on similar drug charges. It is undisputed that counsel was representing appellant and his other clients under a flat fee agreement, as opposed to an hourly fee agreement. Counsel noted on his handwritten time sheet that he spent eight hours representing appellant on August 18, 2000, the day of a scheduled sentencing hearing that failed to take place. Counsel made similar entries for three other clients he represented that day. Appellant thus argues that the computer generated time record does not accurately reflect the raw data of the time sheetsbecause the time sheets show a total of thirty-two hours of work representing four different clients, but the computer printout shows only the eight hours spent on appellant's defense.

Appellant argues that the alleged discrepancies in his trial counsel's time-keeping methods reflect the quality of legal advice he received from trial counsel. The computer generated time record constitutes an original under our rules because it is a printout generated from data stored in a computer that reflects accurately the data contained in trial counsel's handwritten time sheets. See Ark. R. Evid. 1001(3) (2001). Therefore, the best evidence rule was not violated by its admission.

Additionally, the time record is not closely related to the controlling issue of appellant's Rule 37 proceedings. See Ark. R. Evid. 1005(4) (2001). Despite appellant's contention otherwise, the admission of the computer generated time record and any discrepancies that existed between it and counsel's handwritten time sheets concerning time counsel spent on other client's cases constitutes a collateral matter to the issue of whether appellant intelligently and voluntarily entered a guilty plea with the advice of competent counsel. In order to show prejudice on his ineffective assistance of counsel claims, appellant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Appellant fails to show how the alleged time-keeping discrepancies affected his decision to plead guilty. The circuit court did not abuse its discretion in admitting the computer generated time record into evidence at appellant's Rule 37 hearing, and appellant suffered no prejudice from its admission.

Appellant's second claim builds upon his first. During cross-examination of appellant'strial counsel at the Rule 37 hearing, appellant requested that the handwritten time sheets be produced. Appellant did not ask for a continuance, and did not object to the circuit court's decision to leave the record open so that trial counsel could produce the documents post-hearing. At the conclusion of appellant's Rule 37 hearing, the circuit court set a deadline for trial counsel to submit, by affidavit, the handwritten time sheets. Trial counsel did so, but after the circuit court's deadline and after the State and appellant had filed their proposed findings of fact and conclusions of law. The circuit court, nonetheless, considered the materials submitted by affidavit in denying appellant's petition. Appellant claims that the circuit court erred in doing so, alleging that the materials amounted to hearsay and that the circuit court's consideration of them violated his constitutional right to confront witnesses against him. We refuse to consider the appellant's claim, and in any event, he suffered no prejudice.

Appellant raises this issue for the first time on appeal. It was appellant's obligation, however, to obtain a ruling in order to properly preserve the issue for review. See Huddleston, v. State, 347 Ark. 226, 228-29, 61 S.W.3d 163, 166 (2001). We have repeatedly stated that the failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes review on appeal. Id. Appellant argues that he had no opportunity to object because he was not aware that the affidavit had been filed until he read the circuit court's order. Appellant, however, could have filed a motion for reconsideration asking to strike the late submitted materials. Moreover, appellant requested that the time sheets be produced, and he did not object when the circuit court offered to leave the record open for their submission post-hearing. A party may not agree with a ruling by the trial court and then attack that ruling onappeal. Sherrill v. State, 329 Ark. 593, 595, 952 S.W.2d 134, 135 (1997).

Further, appellant suffered no prejudice from the circuit court's consideration of the hand written time sheets. As discussed above, the circuit court did not abuse its discretion in admitting the computer generated time record that compiled the time sheets, and appellant suffered no prejudice from the admission of the computer generated time record. The time records and time sheets, and their contents, are clearly matters collateral to the claims of ineffective assistance of counsel at the heart of appellant's Rule 37 proceedings.

Appellant finally claims that his trial counsel was ineffective during sentencing. His argument is again premised upon discrepancies between the handwritten time sheets and the computer generated time record. He alleges that the amount of time spent by his trial counsel on his case was far less than reflected by the time record. In short, he contends that appellant only spent 2.1 hours on his defense and that such an amount of time is never sufficient dedication to the defense of four Class Y felonies and four Class C felonies. He submits that the totality of the evidence submitted concerning discrepancies between the time sheets and time record show that his trial counsel's performance was deficient and that he suffered prejudice.

Appellant's claim is not cognizable, however, because he pled guilty. When a guilty plea is challenged under Rule 37, the sole issue is whether the plea was intelligently and voluntarily entered with the advice of competent counsel. Beulah, supra. Appellant has failed to raise such a claim, and he does not allege that there is a reasonable probability that, but for his counsel's time keeping methods, he would have insisted on going to trial instead of pleading guilty.

AFFIRMED.