Eugene Morris, Jr. v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

NOVEMBER 15, 2001

EUGENE MORRIS, JR.

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 00-585

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, CR 97-571, HONORABLE MARION HUMPHREY, JUDGE

AFFIRMED

In 1998, appellant entered pleas of guilty to two counts of possession of cocaine with intent to deliver and one count of possession of marijuana with intent to deliver before Judge John Langston. The circuit court sentenced appellant as a habitual offender to consecutive twenty-five year terms of imprisonment for the cocaine convictions, and to a concurrent three year term of imprisonment for the marijuana conviction. The circuit court further ordered that all sentences were to be served consecutive to any other time being served.

Appellant filed a motion to withdraw his guilty plea, and later amended his motion to a petition for postconviction relief pursuant to Rule 37. He contended that his guilty pleas were entered without the effective assistance of counsel because his attorney advised him that his state sentences would be run concurrent with a federal sentence he was serving. Judge Langston recused, and the case was reassigned to a separate division of the Pulaski County Circuit Court presided over by Judge Marion Humphrey. Judge Humphrey conducted a hearing on appellant'spetition, and subsequently denied any relief. In this appeal, appellant submits that the circuit court erred in doing so. We find no error and affirm.

We will not reverse a trial court's findings granting or denying postconviction relief absent clear error. State v. Herred, 332 Ark. 241, 251, 964 S.W.2d 391, 397 (1998). 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. Id. 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 - 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 - 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, 330 Ark. 381, 389, 953 S.W.2d 883, 886 (citing Duncan v. State, 304 Ark. 311, 316, 802 S.W.2d 917-919-20 (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. Herred, 332 Ark. at 251, 964 S.W.2d at 397.

Appellant contends that he would not have pleaded guilty and would have insisted on going to trial absent his attorney's advice and assurances that any term of imprisonment imposed would run concurrent to the time appellant was serving in federal prison. In Stobaugh v. State, 298 Ark. 577, 769 S.W.2d 26 (1989), the defendant sought to withdraw his plea on the basis that his attorneyprovided ineffective assistance by giving him the impression that he would receive a suspended or probated sentence if he pleaded guilty. Instead, Stobaugh received a sentence of four years and a fine of $10,000. We rejected Stobaugh's ineffective assistance of counsel claim, stating:

A defendant who receives a greater sentence than expected is not entitled to have his plea withdrawn solely on that basis. In the absence of a plea agreement or other extenuating circumstances, the fact that a defendant hoped for, or even expected, a lighter sentence is not grounds for withdrawing the plea after an unfavorable sentence is pronounced.

Id. at 580, 769 S.W.2d at 28. See also Seek v. State, 330 Ark. 833, 957 S.W.2d 709 (1997); Johninson, supra.

The evidence in the record before us shows that, in signing the plea statement, appellant acknowledged that he understood the minimum and maximum possible sentences for the charged offenses, that he understood the charges, that he had discussed his case fully with his attorney and was satisfied with his service, and that he understood that the power of sentence was with the circuit court only. The record also shows that, during the plea hearing, the circuit court informed appellant that the total exposure on the charges against him were up to two consecutive life sentences plus thirty years in the Department of Correction. At that time, appellant stated that he understood the possible penalties, had discussed his plea statement with his attorney and understood it, and had no questions about it. He further stated that no one had promised him anything, or forced or threatened him to enter his pleas. He then admitted that the charges against him were true, and that he was guilty. Given our deference to the trial court's position with respect to the evaluation of the testimony of witnesses, we cannot conclude that its decision that appellant's counsel was not ineffective was clearly erroneous. See Johninson, supra.

Affirmed.