Donald Ray Hooks v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 11, 2001

DONALD RAY HOOKS

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 00-194

AN APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 89-1486

HONORABLE JOHN BERTRAN PLEGGE, CIRCUIT JUDGE

AFFIRMED

Following a jury trial, appellant was convicted of delivery of a controlled substance and was sentenced as a habitual offender to life in prison. We affirmed his conviction and sentence in Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990). Appellant subsequently filed a petition for postconviction relief, which was denied August 13, 1997, without written findings of fact and conclusions of law as required by the Arkansas Rules of Criminal Procedure. We reversed and remanded the case for written findings in accordance with the rules. See Hooks v. State, CR 98-63 (Ark. Sept. 30, 1999). Upon remand, the court entered an order which included written findings of fact and conclusions of law. Appellant now appeals that order and submits two claims of ineffective assistance, specifically, that counsel failed to inform him of the range of punishment for his offense and failed to communicate a plea offer of ten years in a timely manner.

The United States Supreme Court enunciated the standard for assessing the effectivenessof counsel in Strickland v. Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland, 466 U.S. at 687. Thus, a defendant must show first, that counsel's performance "fell below an objective standard of reasonableness," and second, that the errors "actually had an adverse effect on the defense." Id. at 688, 693.

In reviewing a denial of relief under Rule 37, we must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). To rebut this presumption, the defendant must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt as to the defendant's guilt in that the decision reached would have been different absent the errors. See id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. See id. 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. See Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997) (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). In making a determination on a claim of ineffectiveness, we consider the totality of the evidence before the factfinder, and we will not reverse the denial of postconviction relief unless the lower court'sfindings are clearly against the preponderance of the evidence. See Noel, supra.

Appellant first claims that he was unaware of the penalties facing him until the day of his jury trial. At his postconviction hearing, Hooks's counsel testified that although he did not completely recall having a conversation with the appellant regarding the enhanced penalties he faced, he was sure that at some point it was discussed because it was his practice to "always tell [his] clients what they're looking at" before going to court. The circuit court cited to the testimony of both trial counsel and Hooks and found that appellant's trial counsel did communicate to him the sentencing range, specifically, the possibility of life imprisonment. We cannot say that the trial court's ruling was clearly erroneous, as we defer to a trial court's determinations of credibility on Rule 37 appeals. See Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001) (citing Myers v. State, 333 Ark. 706, 972 S.W.2d 227 (1998)).

Appellant further asserts that his trial counsel was offered a plea of ten years by the prosecutor prior to trial, but failed to timely communicate that offer to him. However, in his petition to the circuit court, appellant stated:

Prior to trial Defendant was told by Counsel that the State had made an offer to Defendant. The offer was that the State would recommend a ten year sentence in exchange for Defendant's plea of guilty. The State would of necessity have dismissed the habitual allegations.

. . .

The Defendant was without this vital information [of the penalty for habitual offenders] at the time the ten year offer was made to him.

Moreover, at the postconviction hearing, Hooks testified to the following:

PROSECUTOR: And you knew about the ten-year offer, because Mr. Devine called you and told you about the ten-year offer?

HOOKS: Yeah, he called me at- -

PROSECUTOR: And you didn't take it at that time, did you?

HOOKS: He said I didn't have to.

PROSECUTOR: You didn't take it at that time?

HOOKS: No, I didn't take it at that time.

Mr. Hooks also testified that his trial counsel told him to consider the plea offer, but never got back in touch with him until the day of trial. Appellant's trial counsel testified that he attempted to contact the appellant but there were problems with the phone lines. The circuit court concluded that appellant's trial counsel did communicate the plea offer to the appellant and that petitioner was aware of the offer prior to the eve of trial. Failure to communicate a plea agreement offer to a defendant has been held to constitute ineffective assistance of counsel. See Riggins v. State, 329 Ark. 171, 946 S.W.2d 691 (1997). However, that is not the case here. Clearly, appellant knew of the plea offer and did not take it at the time it was communicated to him, as evidenced by his testimony at the postconviction hearing. Again, we cannot say that the trial court was clearly erroneous.

Affirmed.