State of Arkansas v. Glen Herred

STATE of Arkansas v. Glen HERRED

CR 97-664                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 12, 1998


1.   Criminal procedure -- postconviction relief -- available to petitioner in
     custody under sentence of circuit court. -- Rule 37.1 of the Arkansas
     Rules of Criminal Procedure, defining the scope of Rule 37,
     provides that postconviction relief is available to "[a]
     petitioner in custody under sentence of a circuit court
     claiming a right to be released, or to have a new trial, or to
     have the original sentence modified." 

2.   Criminal procedure -- withdrawal of guilty plea -- applicability of Ark.
     R. Crim. P. 26.1(b). -- The supreme court has allowed a petitioner
     to proceed under Ark. R. Crim. P. 26.1(b) when his motion to
     withdraw a guilty plea has been filed prior to the time
     sentence has been entered and placed in execution.

3.   Judgment -- when placed in execution. -- A judgment has been placed
     in execution when the court issues a commitment order, unless
     the trial court grants appellate bond or specifically delays
     execution of sentence upon other valid grounds.

4.   Criminal procedure -- postconviction relief -- trial court had jurisdiction
     to consider merits of Rule 37 motion. -- Where appellee was in
     custody when the trial court ultimately disposed of his motion
     to withdraw his guilty plea, and where his motion was
     otherwise timely under Ark. R. Crim. P. 26.1(b) and 37.2, the
     trial court had jurisdiction to consider the merits of
     appellee's Rule 37 motion.

5.   Criminal procedure -- postconviction relief -- guilty plea -- only two
     claims cognizable in Rule 37 proceedings. -- When a defendant pleads
     guilty, the only claims cognizable in Rule 37 proceedings are
     those that allege that the plea was not made voluntarily and
     intelligently or was entered without effective assistance of
     counsel.

6.   Criminal procedure -- postconviction relief -- when findings reversed. --
     The supreme court will not reverse the trial court's findings
     granting or denying postconviction relief absent clear error.

7.   Attorney & client -- ineffective-assistance claim -- two-part standard
     applies to guilty-plea challenges. -- The two-part standard for
     evaluating claims of ineffective assistance of counsel --
     requiring that the defendant show that counsel's
     representation fell below an objective standard of
     reasonableness and that there was a reasonable probability
     that, but for counsel's unprofessional errors, the result of
     the proceeding would have been different -- applies to guilty-
     plea challenges based on ineffective assistance of counsel; to
     satisfy the second requirement, the defendant must show that
     there is a reasonable probability that, but for counsel's
     error, he would not have pleaded guilty and would have
     insisted on going to trial; it is the defendant's burden to
     prove ineffective assistance of counsel, and it is a heavy
     burden because counsel is presumed effective.

8.   Criminal procedure -- defendant who has pleaded guilty has difficulty in
     establishing prejudice. -- 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.

9.   Criminal procedure -- threats or offers of leniency to third party --
     good-faith standard -- satisfied by probable cause to prosecute third
     party. -- When a prosecutor threatens or offers leniency to a
     third party during plea negotiations with a defendant, the
     prosecutor is held to a high standard of good faith that is
     satisfied by probable cause to prosecute the third party. 

10.  Criminal procedure -- trial court clearly erred in finding that appellant's
     guilty plea resulted from ineffective assistance or State coercion -- State
     had probable cause to arrest and prosecute appellant and third party. --
     To the extent that the trial court found that appellant would
     not have pleaded guilty but for ineffective assistance or that
     his plea was coerced due to the State's threats of prosecution
     against a third party, the mother of his children, it was
     clearly erroneous; where the State had probable cause to
     arrest and prosecute appellant and the other party,
     appellant's guilty plea could not have been coerced as a
     result of promises of leniency or threats of prosecution made
     against the third party.

11.  Criminal procedure -- trial court clearly erred in granting postconviction
     relief -- failed to find counsel's purported deficiencies prejudiced
     appellant. -- The trial court clearly erred in granting
     postconviction relief because it failed to find that any of
     counsel's purported deficiencies prejudiced appellant; the
     trial court never specifically found that but for any of
     counsel's deficiencies, appellant would not have pleaded
     guilty and proceeded to trial; the order not only failed to
     set forth what, if any, additional information or defenses
     would have been discovered but for one or any combination of
     counsel's deficiencies; it also failed to find that, with the
     benefit of this additional information, there existed a
     reasonable probability that appellant would have insisted on
     going to trial.

12.  Criminal procedure -- trial court clearly erred in ruling that counsel was
     deficient in failing to object to warrant's facial sufficiency. -- While
     the trial court appeared to criticize appellant's failure to
     file a motion to suppress because of facial deficiencies in a
     nighttime search warrant, the warrant itself demonstrated the
     factual basis required to justify a nighttime search; to the
     extent that the trial court ruled that counsel was
     unconstitutionally deficient in failing to object to the
     warrant's facial sufficiency because it was difficult for the
     court to make a determination whether or not a nighttime
     search was authorized, it was clearly erroneous.

13.  Criminal procedure -- postconviction relief -- trial court clearly erred
     in granting -- judgment reversed. -- Holding that the trial court
     had clearly erred in granting appellant Ark. R. Crim. P. 37
     relief, the supreme court reversed the judgment of the trial
     court.


     Appeal from Phillips Circuit Court; L.T. Simes II, Judge;
reversed.
     Winston Bryant, Att'y Gen., by:  C. Joseph Cordi, Jr., Asst.
Att'y Gen., for appellant.
     Louis A. Etoch, for appellee.

     Annabelle Clinton Imber, Justice.
     Glen Herred pleaded guilty to a charge of attempted possession
of a controlled substance with intent to deliver, a Class A felony. 
He subsequently filed a petition for relief under Ark. R. Crim. P.
26.1 and 37, which the trial court granted.  We reverse and hold
that the trial court clearly erred in granting relief.
     Sometime before midnight on June 19, 1996, the police executed
a nighttime search warrant at the residence located at 625 Quarrles
Street in Marvell.  Among other things the officers seized a gun,
as well as twenty-four grams of cocaine that were discovered in a
pair of shorts belonging to Sadere Baker, found underneath Baker's
"bed tick."  At the time the police entered, Baker was in bed with
Herred, her boyfriend.  Baker was the mother of Herred's three
children.  Both Herred and Baker were arrested, along with other
people inside the residence.
     On July 30, 1996, the police charged Herred with one count of
possession of a controlled substance with intent to deliver, a
Class Y felony, as well as simultaneous possession of drugs and
firearms, a Class Y felony.  Baker was charged as well.  Herred
appeared for trial on December 12, 1996.  Represented by retained
counsel, Herred entered a negotiated plea of guilty.  The State
nolle prossed the simultaneous-possession count, and Herred pleaded
guilty to a reduced charge of attempted possession of a controlled
substance with intent to deliver, a Class A felony.  Following a
colloquy with Herred, the trial court accepted the plea as well as
the State's recommendation of fifteen years' imprisonment, with
credit for time served.  The trial court further explained to
Herred that he was going to allow Herred to remain on bond until
December 26, 1996.  On December 13, 1996, Sadere Baker pleaded
guilty to attempted possession of a controlled substance with
intent to deliver, a Class A felony, and received a six-year
suspended sentence.  On December 18, 1996, the judgment and
commitment order in Herred's case was entered.
     On December 23, 1996, Herred filed a pro se "Verified Petition
Under Rule 26.1 and 37, Ark. R. Crim. P. And Ark. Code Ann.  16-
90-111 To Set Aside Guilty Plea, To Vacate, Or To Correct
Defendant's Sentence And For Other Proper Relief."  Among other
things, Herred claimed that he was denied effective assistance of
counsel, and that his plea was coerced as a result of threats of
prosecution levied against Baker, the mother of his children.  On
December 26, Herred reported to begin serving his sentence, and on
January 28, 1997, the trial court held an evidentiary hearing on
the petition.  Attorney Louis Etoch, who had previously represented
Sadere Baker in connection with the original charges, represented
Herred at the postconviction hearing.
     Vandall Bland was the attorney who represented Herred at the
time he pleaded guilty, and had been retained about a month before
the trial date.  On that date, Bland had a number of other cases
set for trial, as he was the Phillips County Public Defender.  He
explained that he had filed no written motions in the case, and had
not filed a motion to suppress the drugs seized from the residence. 
While he had filed no discovery motions in the case, the prosecutor
had provided him with the file.  Bland was prepared to go to trial
because he had all of the discovery and all of the witnesses were
available to testify.  He was not aware that Herred had been
drinking that day.  In fact, he did not notice any of the tell-tale
signs of intoxication such as slurred speech, blood-shot eyes or
unsteadiness.   Nor did he smell any alcohol on Herred, although he
conceded that he could not "smell that well."  Bland knew that
Herred could read and write.  He also thought that he had read the
plea execution form to Herred, and had him initial it.  Baker and
Herred were crying on the day of the plea.
     Bland was aware that the prosecutor had offered Sadere Baker 
(who had also been charged) probation if she testified against
Herred.  It was Bland's understanding that the prosecutor would
offer Baker a suspended sentence in exchange for Herred's plea. 
This occurred in the judge's chambers, where Bland, Herred, Baker,
and Attorney Louis Etoch (then representing Baker) were all
present.  Etoch had advised Baker not to testify against Herred.
     Victor Owens, a longtime friend of Herred's, testified that
the night before the plea he and Herred drank substantial
quantities of alcohol, and Herred appeared intoxicated.  They
stayed out until about 12:30 that night.  Herred was ill and taking
"Tylenol and a lot of more drugs."  Herred expressed his innocence
and concern for his children.  Owens stated that Herred had lived
at the Baker residence with Sadere less than a year, but later
clarified that "he wasn't staying there that I know of."
     Sadere Baker testified that Herred was not living with her at
her residence.  Baker stated that the cocaine seized was hers, and
that she was keeping it for a friend.  On cross-examination, she
stated that her intent was to sell it to make money.  The cocaine
was "in [her] shorts under [her] bed tick."  She did not inform
Herred of the cocaine, and he did not see it to her knowledge.  The
night before the plea, Herred came in around 12:30 or 1:00 in the
morning and appeared intoxicated.  He was also taking medication
for sinus problems, and he drank some more the morning he came to
court.  On the day of Herred's trial, she understood that the plea
negotiations were that she would get probation in exchange for
Herred's plea.  They were both crying on the day of the plea
because the drugs did not belong to Herred and she did not want him
to go to jail.  He told her that he would rather go to jail.  As
Bland was discussing the case with Herred, Baker told Herred that
she did not want to go to jail.  She stated that the gun in her
house belonged to Kevin Sanders, apparently Herred's nephew, who
was willing to testify to that effect.
     Glen Herred testified that he was not incarcerated immediately
after his plea, but that he began serving his term on December 26. 
He stated that he did not live at the Baker residence.  He was not
aware that his case was going to trial on December 12, 1996, until
the day before.  He did not sleep well the night before the trial
date, and he drank a large quantity of alcohol as well as
medication for flu symptoms.  On the way to Bland's office the
morning of trial he drank a beer.  He did not know that cocaine was
in the house, and did not possess it.  Neither did he know that the
gun was in the house.  Bland told him that Baker would be sentenced
"fifteen to life" if he "didn't take them charges."  He also told
Bland about Kevin Sanders admitting to possessing the gun, to which
Bland responded that he should do the "manly thing and take the
charge, because if you let that young kid take the charge, they
will try to hang him.  So he told me to do the right thing, just
take the charges."  Etoch explained to Herred that Baker would get
probation only if she testified against him, and later that she
would only get probation if he pleaded guilty.  Herred expressed
his innocence to Bland, but he pleaded guilty because he wanted the
mother of his children to take care of the children.  He did not
feel that Bland was prepared to try the case.  Bland told him that
he would get life if he went to trial.  Herred testified that he
lied in answering the questions asked of him during the plea
colloquy.  He stated that he paid some bills at the Baker
residence, and considered it "home" along with his mother's house.
     Lovell Ashley Higgins was then the circuit judge who took
Herred's plea.  He noticed nothing unusual about Herred's
appearance or demeanor on December 12 while he took the plea. 
Judge Higgins had been in Herred's presence for at least one hour
before the plea was taken.  Part of that time was in the close
confines of the judge's chambers where he saw no signs of
intoxication.  Nor did he smell the odor of intoxicants.   Judge
Higgins did have concerns about Etoch trying to manipulate Herred.
     Following this evidentiary hearing, the trial court entered an
order on April 10, 1997, vacating Herred's plea and granting him a
new trial.  The trial court found that Herred's petition was
untimely pursuant to Ark. R. Crim. P. 26.1, and denied Herred's
requested relief to the extent that it was a Rule 26.1 motion to
withdraw guilty plea.  Considering Herred's petition as a Rule 37
motion for postconviction relief, the trial court found that Herred
was denied effective assistance of counsel and that his plea was
coerced.  The trial court's order contains the following findings:
     --  Defense counsel had represented Herred for only a month,
     counsel's time was inadequate for preparation;
     --  The only motions filed by defense counsel were oral
     motions made the morning of trial;
     --  Defense counsel also served as the Phillips County Public
     Defender during which he had a large number of cases set for
     trial;
     --  Defense counsel testified that the prosecutor had
     voluntarily given him discovery;
     --  Defense counsel made no motion to suppress the drugs and
     gun seized pursuant to the nighttime search warrant;
     --  It was unclear whether the search warrant was properly
     executed so as to authorize a nighttime search;
     --  Defense counsel testified "the whole case created a
     problem";
     --  Defense counsel issued no subpoenas and did not respond to
     discovery motions;
     --  Defense counsel did not move for a continuance;
     --  Defense counsel testified that he knew that Sadere Baker,
     Herred's girlfriend and the mother of his children, would
     receive a five-year suspended sentence if Herred pleaded
     guilty;
     --  Defense counsel testified that there was "pressure" on
     Herred;
     --  Defense counsel testified that "I think what persuaded him
     to take the plea. . . he was looking out for Sadera [sic]."
     --  Herred and Sadere Baker were outside the courtroom crying
     immediately before entering the plea;
     --  The State did not "deny or refute" Herred's contention
     that he must plead guilty before the State would offer Baker
     a suspended sentence;
     --  Defense counsel testified that the prosecutor reminded him
     of the "Sam Lanford" case (Herred's defense counsel had also
     represented Lanford), where the defendant refused a plea
     bargain, went to trial and received a 120-year sentence;
     --  Defense counsel testified that the prosecutor "pushed his
     chest out;"
     --  A longtime friend of Herred's testified that the night
     before the plea was entered Herred expressed concern for his
     children, "needed someone to talk to," and consumed
     substantial amounts of alcoholic beverages;
     --  "Defendant Herred was granted a hearing and given an
     opportunity to prove that the entry of the plea was the result
     of fear or threats that his wife would be tried or brought to
     trial."
     --  The trial court found that the State insisted on Herred's
     guilty plea before offering a suspended sentence to Sadere
     Baker the next day.
     --  Sadere Baker was the mother of Herred's children, ages
     one, two, and three.
     --  Herred entered the plea as a result of "threats of
     prosecution of the mother of his children."
     --  Defense counsel testified that "I might have told him that
     the manly thing to do was take the charge."

Following these findings, the trial court's order concludes as
follows:
  A two part test for reviewing claims of ineffective
assistance of counsel was adopted by the United States
Supreme Court in Strickland v. Washington, 466 U.S. 668
(1984): (1) The Defendant must show that counsel's
representations fell below an objectionable [sic]
standard of reasonable [sic] and (2) The Defendant must
show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.  Based upon the
totality of the circumstances and the record herein, the
Court finds that the counsel's assistance was
ineffective.

  The Court hereby grants Defendant's petition to set
aside the guilty plea and orders a new trial.

The State brings the present appeal.  
                               I.
     The State first argues that the trial court lacked
jurisdiction to grant Herred Rule 37 relief because he was not "in
custody" when he filed his petition.  Rule 37.1, defining the scope
of the rule, provides that relief is available to "[a] petitioner
in custody under sentence of a circuit court claiming a right to be
released, or to have a new trial, or to have the original sentence
modified. ..."  In support of this proposition the State primarily
relies on Coplen v. State, 298 Ark. 272, 766 S.W.2d 612 (1989) and
Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988).  In Coplen
the appellant was convicted of two counts of battery and later
sought postconviction relief.  At the time petitioner filed his
petition with the trial court, "he was not in custody."  The Coplen
court affirmed the trial court's denial of postconviction relief
because the petition failed to state any grounds for either habeas
corpus relief or relief under Rule 37.  In conclusion the court
notes that "[petitioner] was not in custody when his petition was
filed, a prerequisite for Relief."  Id. (citing Ark. R. Crim. P.
37.1; Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988)).
     In Malone, supra, the appellants pleaded guilty to charges of
criminal mischief and theft by receiving and were sentenced to two
years' imprisonment.  They subsequently argued that the trial court
erred in denying their motions to withdraw their pleas, in
rejecting their contention that they received ineffective
assistance of counsel, and in denying their alternative request for
Rule 37 relief.  The Malone court affirmed the denial of relief
under Rule 26, noting that their motion was untimely in that it was
made more than one month after their conviction orders were
entered.  The court then noted that "the `Scope of the Remedy' for
proceedings under Rule 37 is confined to a prisoner, in custody
under sentence of a circuit court.  [citation omitted].  Here, the
appellants were out of custody on their original bonds when they
filed their motion for relief under Rule 37."  Id.  Continuing to
the merits, the Malone court concluded that the appellants'
allegations failed to justify postconviction relief.
     We must reject the State's argument that the trial court
lacked jurisdiction to grant Herred Rule 37 relief.  First, Herred
in his petition purported to seek relief under Rule 26.1 as well as
Rule 37.  Rule 26.1(b) provides as follows:
     (b) A motion to withdraw a plea of guilty or
     nolocontendere to correct a manifest injustice is timely
     if, upon consideration of the nature of the allegations
     of the motion, the court determines that it is made with
     due diligence.  Such motion is not barred because it is
     made after the entry of judgment upon the plea.  If the
     defendant is allowed to withdraw his plea after judgment
     has been entered, the court shall set aside the judgment
     and the plea.

We have allowed a petitioner to proceed under this rule when his
motion to withdraw a guilty plea has been filed prior to the time
sentence has been entered and placed in execution.  Johninson v.
State, 330 Ark. 381, 953 S.W.2d 883 (1997).  A judgment has been
placed in execution "when the court issues a commitment order
unless the trial court grants appellate bond or specifically delays
execution of sentence upon other valid grounds."  Redding v. State,
293 Ark. 411, 738 S.W.2d 410 (1987).  
     While the trial court entered the judgment and commitment
order on December 18, before Herred's petition was filed, the trial
court specifically delayed the execution of sentence until December
26, allowing Herred to remain free on bond.  Thus, Herred's Rule
26.1 motion to withdraw was timely filed, unlike the appellants in
Malone.  Just as in Johninson, supra, "Rule 26.1(a) is obviously
not applicable because the motion was not made prior to the
pronouncement of sentence, we are relegated to subsection (b) and
Rule 37."  Because Herred was in custody when the trial court
ultimately disposed of his motion, and because his motion was
otherwise timely under Rules 26.1(b) and 37.2, we conclude that the
trial court had jurisdiction to consider the merits of Herred's
Rule 37 motion.  Cf. Johninson, supra.
                               II.
     When a defendant pleads guilty, the only claims cognizable in
Rule 37 proceedings are those which allege that the plea was not
made voluntarily and intelligently or was entered without effective
assistance of counsel.  Bryant v. State, 323 Ark. 130, 913 S.W.2d 257 (1996).  We will not reverse the trial court's findings
granting or denying postconviction relief absent clear error.  See
Rowe v. State, 318 Ark. 25, 883 S.W.2d 804 (1994).  To be entitled
to withdraw a guilty plea due to ineffective assistance of counsel,
the petitioner must show as follows:
     In Hill v. Lockhart, 474 U.S. 52 (1985), [it was held
     that] the two-part standard adopted in Strickland v.
     Washington, 466 U.S. 668 (1984), for evaluating claims of
     ineffective assistance of counsel -Ä  requiring that the
     defendant show that counsel's representation fell below
     an objective standard of reasonableness, and that there
     is a reasonable probability that, but for counsel's
     unprofessional errors, the result of the proceeding would
     have been different -Ä applies to guilty plea challenges
     based on ineffective assistance of counsel.  In order to
     satisfy the second requirement, the defendant must show
     that there is a reasonable probability that, but for
     counsel's error, he would not have pleaded guilty and
     would have insisted on going to trial.  It is the
     defendant's burden to prove ineffective assistance of
     counsel, and it is a heavy burden because counsel is
     presumed effective.  Hicks v. State, 289 Ark. 83, 709 S.W.2d 87 (1986).

Johninson, supra (quoting Duncan v. State, 304 Ark. 311, 802 S.W.2d 917 (1991) (emphasis supplied in Johninson)).  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.  See Thompson v. State, 307 Ark. 492,
821 S.W.2d 37 (1991).
     To the extent that the trial court found that Herred would not
have pleaded guilty but for ineffective assistance or that his plea
was coerced due to the State's threats of prosecution against
Baker, it was clearly erroneous.  The State cites us to a number of
federal circuits which hold that when a prosecutor threatens or
offers leniency to a third party during plea negotiations with a
defendant, the prosecutor is held to a "high standard of good
faith" in such circumstances that is satisfied by probable cause to
prosecute the third party.  See Miles v. Dorsey, 61 F.3d 1459 (10th
Cir. 1995), cert. denied, 116 S. Ct. 743 (1996) ("The government
acts in good faith when it offers leniency for an indicted third
party or threatens to prosecute an unindicted third party in
exchange for a defendant's plea when the government has probable
cause to prosecute the third party. ...  Consequently, so long as
the government has prosecuted or threatened to prosecute a
defendant's relative in good faith, the defendant's plea, entered
to obtain leniency for the relative, is not involuntary."); United
State v. Pollard, 959 F.2d 1011 (D.C. Cir. 1991), cert. denied, 506 U.S. 915 (1992) ("Where, as here, the government had probable cause
to arrest and prosecute both defendants in a related crime, and
there is no suggestion that the government conducted itself in bad
faith in an effort to generate additional leverage over a
defendant, we think a wired plea is constitutional."); Martin v.
Kemp, 760 F.2d 1244 (11th. Cir. 1985) (threats against third party
impose "high burden of good faith" on prosecutor that is met by
probable cause to believe that the third party had committed a
crime at the time of threat -- case remanded to determine what the
police knew at the time of the threat); see also Stanley v. State,
280 Ark. 245, 657 S.W.2d 285 (1983) (affirming denial of
postconviction relief based on involuntary plea despite threats of
a quicker trial and a substantial sentence for the appellant's
wife, a co-defendant).  Under the facts of the present case, there
is no doubt that the State had probable cause to prosecute Baker
when it informed Herred that it would offer Baker leniency in
exchange for Herred's guilty plea.  And, there is no doubt that the
State had probable cause to search the residence Herred considered
his "home."  Thus, where the State had probable cause to arrest and
prosecute Herred and Baker, Herred's guilty plea could not have
been coerced as a result of promises of leniency or threats of
prosecution made against Baker.
     We also agree with the State that the trial court clearly
erred in granting postconviction relief because it failed to find
that any of counsel's purported deficiencies prejudiced Herred. 
The trial court's order simply recites a number of factual findings
and ends with a conclusory remark that "counsel's assistance was
ineffective" "[b]ased upon the totality of the circumstances."  The
trial court never specifically found that but for any of counsel's
deficiencies, Herred would not have pleaded guilty and proceeded to
trial.  The order not only fails to set forth what, if any,
additional information or defenses would have been discovered but
for one or any combination of counsel's deficiencies.  It also
fails to find that, with the benefit of this additional
information, there existed a reasonable probability Herred would
have insisted on going to trial.
     Indeed, the record of this case suggests otherwise.  Herred
initialled and signed a plea statement where he fully acknowledged
that he knew what he was doing.  Among other things, he initialed
statements such as "Have you discussed your case fully with your
attorney and are you satisfied with his services?" and "Are you
entering a plea of guilty on your own free will and accord without
anyone causing you to do so on account of any promises or threats
or any force?"  Judge Higgins specifically asked Herred if his
attorney had gone over the document with him and if he understood
the contents of the document -- Herred responded affirmatively.  In
fact, Judge Higgins extensively queried Herred as to whether he
understood his rights and the consequences of his actions, to which
Herred repeatedly answered yes.  Herred never expressed any
dissatisfaction with his attorney at this time, and never suggested
any coercion or threat, despite every opportunity to do so.  Quite
the contrary, Herred gained a considerable benefit from the plea. 
He was able to plead guilty to a substantially reduced charge, a
class A felony, rather than two Class Y felonies.  
     Moreover, none of the purported deficiencies prejudiced
Herred.  The prosecutor had voluntarily given Herred all of the
discovery and all witnesses were available to testify at trial. 
While the trial court appeared to criticize Herred's failure to
file a motion to suppress because of facial deficiencies in the
nighttime search warrant, the warrant itself demonstrated the
factual basis required to justify a nighttime search.  See Ark. R.
Crim. P. 13.2(c); Neal v. State, 320 Ark. 489, 898 S.W.2d 440
(1995).  The warrant form used in the present case had three boxes
allowing the judicial official to indicate a finding of reasonable
cause to believe that circumstances justifying a nighttime search
existed by checking three boxes.  Two of these boxes were marked,
the one providing "the objects to be seized are in danger of
imminent removal," and the other providing "the warrant can only be
safely or successfully executed at nighttime or under
circumstances, the occurrence of which is difficult to predict with
accuracy."  Underneath this, there are instructions to "(State the
facts relied on in determining the reasonable cause to believe one
or more of the circumstances listed above existed.)"  In this
space, the following is typed:
(1).  THE SUBSTANCES TO BE SEIZED ARE IN DANGER OF
IMMINENT REMOVAL, AN [sic] THE SUSPECTS ARE SELLING THE
CONTROLLED SUBSTANCES AT THIS TIME.

(2).  THE MARKED BUY MONEY IS IN DANGER OF IMMINENT
REMOVAL.

(3).  IT IS REPORTED THAT THERE ARE WEAPONS IN THE HOUSE,
AND THIS INVESTIGATOR FEELS THAT IT WOULD CONTRIBUTE TO
OFFICER SAFETY.

These facts were corroborated by the warrant's supporting
affidavit, which showed that the controlled buy had taken place
hours before and that marked buy money had been used in the
transaction.  Thus, to the extent that the trial court ruled that
counsel was unconstitutionally deficient in failing to object to
the warrant's facial sufficiency because "[i]t [was] difficult for
the Court to make a determination as to whether or not a night time
search was authorized," it was clearly erroneous.
     Based on the foregoing, the trial court clearly erred in
granting Herred Rule 37 relief.  The judgment of the trial court is
reversed.
     Reversed.
     Glaze, J., concurring.  I concur and would dismiss based upon
the trial court's lack of jurisdiction.