Michael Todd Hanshew v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 18, 2001

MICHAEL TODD HANSHEW

APPELLANT

v.

STATE OF ARKANSAS

APPELLE

CR 00-06

AN APPEAL FROM THE CIRCUIT COURT OF WASHINGTON COUNTY, NOS. CR 98-1454, CR8-1747. CR 99-99

HONORABLE WILLIAM A. STOREY, CIRCUIT JUDGE

AFFIRMED

Appellant pleaded guilty as a habitual offender to two counts of forgery in the second degree, three counts of fraudulent use of a credit card, one count for failure to appear, one count of aggravated robbery, one count of kidnapping, one count of residential burglary, two counts of theft, and two counts of felon in possession of a firearm. He was sentenced to 40 years' imprisonment, with 5 years suspended. He subsequently filed a pro se petition to correct an illegal sentence in which he alleged that his trial counsel had provided ineffective assistance of counsel. The circuit court appointed counsel, who then filed an amended petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. A hearing was held and the circuit court denied appellant's petition. Appellant now brings this appeal, submitting that the circuit court erred in denying him relief. We find no error and affirm.

Appellant first asserts that the trial court erred when it failed to comply with ArkansasRule of Criminal Procedure 24. Specifically, Hanshew contends the trial court erred by failing to make an inquiry of him sufficient to establish a factual basis for the plea pursuant to Rule 24.6. Where a defendant has pleaded guilty and challenges that plea in a Rule 37 petition, the only claims cognizable are those which allege that the plea was not made voluntarily and intelligently or was entered without the effective assistance of counsel. See State v. Herred, 332 Ark. 241, 964 S.W.2d 391 (1998) (citing Bryant v. State, 323 Ark. 130, 913 S.W.2d 257 (1996)). We will not reverse a trial court's grant or denial of postconviction relief absent clear error. See Rowe v. State, 318 Ark. 25, 883 S.W.3d 804 (1994) (citing Thompson v. State, 307 Ark. 492, 821 S.W.2d 37 (1991)). When Hanshew plead guilty, he waived the right to challenge the sufficiency of the factual basis for his conviction. Accordingly, we affirm the circuit court's order denying relief on this issue.

Appellant next asserts two points on appeal alleging ineffective assistance of counsel.1 The rule for evaluating ineffective assistance claims in cases involving guilty pleas appears in Hill v. Lockhart, 474 U.S. 52 (1985). There, the Supreme Court held that the "cause and prejudice" test of Strickland v. Washington, 466 U.S. 668 (1984), applied to challenges to guilty pleas based upon ineffective assistance of counsel. The Court further held that in order to show prejudice in the context of a guilty plea, the petitioner must show that there is a reasonable probability that, butfor counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. See Hill, supra. The burden is on the defendant to prove ineffective assistance of counsel, and it is a heavy burden because counsel is presumed effective. See Hicks v. State, 289 Ark. 83, 709 S.W.2d 87 (1986). Moreover, 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 State v. Herred, supra.

Appellant alleges that his trial counsel failed to pursue a mental evaluation. Appellant testified at his postconviction hearing that he wanted his attorney to request a mental evaluation based upon the fact that at the time of the offenses, he had been up for eight straight days "after cranking" and that he "kept on hearing voices [saying] kill[,] kill[,] kill[,] kill[.]" Hanshew's trial counsel testified that did not recall appellant telling him personally of any voices, that in a statement to police Hanshew mentioned "chasing the boogie man which he referred to as methamphetamine had gotten into him," that he believed "what road [Hanshew] was going down, was saying he was so messed up on methamphetamine that was affecting . . . his ability there," and that in speaking to him, he did not see any mental problems whatsoever. As previously stated, where 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. See State v. Herred, supra. Because appellant's allegation regarding a mental evaluation does not fall within the permissible Rule 37 claims following a plea of guilty, we affirm the circuit court's order denying relief on this point.

Appellant's final claim on appeal regards trial counsel's advice concerning paroleeligibility. Hanshew insists that his trial counsel never discussed parole eligibility with him, specifically the statutory requirements regarding the required percentage of time to be served on charges of aggravated assault and kidnapping. At the postconviction hearing, Hanshew's trial counsel testified that he had in fact discussed percentages with him on a number of occasions and that he had given him "an estimated guess" that he would either be eligible for parole at around age fifty-five or fifty-six.  The circuit court found that Hanshew's counsel "met the appropriate standard in explaining the ramifications of parole eligibility for the offenses involved" and "[f]urther, [Hanshew] has a sophisticated knowledge of the criminal justice system and fully understood the ramifications of his guilty plea." Moreover, the circuit court concluded that Hanshew failed to demonstrate that his counsel's representation fell below an objective standard of reasonableness or that there was a reasonable probability that but for counsel's alleged errors, he would not have plead guilty and would have chosen to go to trial.

We have held that an attorney has no constitutional duty to inform his client about the existence of the seventy percent rule, or the specifics of parole eligibility. See Buchheit v. State, 339 Ark. 481, 6 S.W.3d 109 (1999). Accordingly, we affirm the circuit court's denial of relief because it was not clearly erroneous. See Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998).

Affirmed.

1 Appellant's brief asserts three points on appeal; he first claims that his trial counsel was ineffective for failing to properly investigate the forgery charges against him and for failing to assert the defense that he was in jail at the time of the alleged offenses. However, in his brief, appellant concedes that this allegation is without merit due to the fact that at his postconviction hearing, testimony was presented through which "it became evident that the appellant was not in jail at the time of the alleged forgeries."