Steven F. Taylor v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

April 26, 2001

STEVEN F. TAYLOR

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 00-877

AN APPEAL FROM THE CIRCUIT COURT OF WHITE COUNTY,

NO. CR 98-15

HONORABLE ROBERT EDWARDS,

CIRCUIT JUDGE

AFFIRMED

In 1995 and 1996, the State filed three informations that charged Steven Taylor with a variety of drug-related offenses. In CR 95-648, Taylor was charged with delivery of a controlled substance. In CR 96-113, he was charged with simultaneous possession of drugs and firearms. In CR 96-190, Taylor was charged with two counts of possession of a controlled substance with intent to deliver and one count of possession of a firearm. In exchange for Taylor's guilty plea, the charge in CR 95-648 was nolle prossed, and he received 432 months' imprisonment in cases CR 96-190 and CR 96-113. Following his guilty plea, Taylor filed a timely petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. In the petition, he alleged he did not receive effective assistance of counsel as guaranteed by the Sixth Amendment. After a hearing, the circuit court entered an order denying relief. Appellant appealed that denial, and we concluded that the circuit court's order did not comply with the requirements of Rule 37.3. We reversed and remandedthe case for written findings of fact and conclusions of law. Taylor v. State, 340 Ark. 308, 9 S.W.3d 515 (2000). Complying with our decision, the trial court entered written findings denying appellant's petition. This appeal followed, and we affirm.

First, appellant argues that his counsel, Phyllis Worley, did not render effective assistance of counsel because she was working under a conflict of interest with respect to case CR 96-113. Appellant contends that the charges in that case stemmed from the execution of a nighttime search warrant at his residence. He states that although he desired to challenge the validity of the warrant, Ms. Worley could not act on his request because the affidavit that supported the warrant contained information that was received from a confidential informant who Ms. Worley had represented two years earlier.

The record reveals that shortly after the above charges were filed against appellant Phyllis Worley was appointed to represent him. After reviewing the prosecutor's file, Ms. Worley discovered that she had previously represented the confidential informant that was involved in cases CR 95-648 and CR 96-113. In response to this information, she filed a motion to be relieved as counsel which the trial court granted. The court appointed Jim Petty to replace Ms. Worley; however, conflicts developed for Mr. Petty, and he was also relieved as counsel for appellant. The trial court then appointed Russ Hunt to represent appellant in CR 95-648 and CR 96-190 with Ms. Worley as co-counsel for CR 96-190. Ms. Worley was reappointed to represent appellant in CR 96-113. Ms. Worley testified that once she was reappointed to CR 96-113, she alerted the prosecutor to the possible conflict that she had with the confidential informant. She remained on the case, however, because the prosecutor assured her that in the event of a trial, the confidential informant would not testify. Subsequently, it was brought to Ms. Worley's attention that the state may in fact use the confidential informant; thus, she requested instruction from the trial court whether to berelieved. Before the court acted on Ms. Worley's request, appellant had reached a plea agreement. At the plea hearing, the court inquired into the conflict issue raised in Ms. Worley's letter dated May 31, 1996. Ms. Worley responded that the only possible conflict was if they had gone to trial and the confidential informant were to testify. Because the parties had entered into a negotiated plea, Ms. Worley assured the court that there was no longer a conflict of interest issue.

The Rule 37 trial court found:

The defendant failed to prove that Ms. Worley had an actual conflict of interest. Prior representation of a potential witness for the state does not by itself establish an actual conflict of interest. The defendant failed to present evidence of any such actual conflict. Secondly, the defendant failed to provide evidence that Ms. Worley's prior representation of the a potential state's witness in anyway effected the adequacy of her representation of the defendant. No evidence was presented to indicate Ms. Worley declined to challenge the search warrant because of her prior representation of the confidential informant.

A petitioner who collaterally attacks his conviction under Rule 37 is required to show that he suffered some actual prejudice arising from a specific error by counsel. Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). Prejudice is presumed only if the defendant demonstrates that an actual conflict of interest adversely affected his lawyer's performance. Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980). As with any claim of ineffective assistance of counsel, the petitioner has the burden of providing factual support to demonstrate that the conflict of interest adversely affected counsel's performance. See Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985); Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978).

Appellant's argument challenging counsel's ineffectiveness because of the alleged conflict of interest focuses on the search warrant, affidavit, and nighttime search. Appellant, however, has failed to adequately abstract the search warrant and the affidavit to search. Although appellant has abstracted language mentioned in the search warrant, we are unable to determine whether thelanguage consists of an impartial condensation of the search warrant as required by Ark. Sup. Ct. R. 4-2 (a)(6). The record on appeal is confined to that which is abstracted and cannot be contradicted or supplemented by statements made in the argument portions of the briefs. Jones v. State, 327 Ark. 85, 937 S.W.2d 633 (1997). Because of this failure, we affirm.1

Next, appellant argues that the attorneys that represented him failed to adequately investigate the case. According to appellant, his attorneys' failure to conduct an adequate investigation played a role in their failure to discover grounds to challenge the nighttime search.

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. State v. Herred, 332 Ark. 241, 964 S.W.2d 391 (1998). We will not reverse the trial court's findings granting or denying postconviction relief absent clear error. Id. The rule for evaluating ineffective-assistance-of-counsel claims in cases involving guilty pleas appears in Hill v. Lockhart, 474 U.S. 52, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985). In that case, the Supreme Court held that the "cause and prejudice" test of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), applied to challenges to guilty pleas based on 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, but for counsel's unprofessional errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. at 60; Buchheit v. State, 339 Ark. 481, 6 S.W.3d 109 (1999). A defendant who has pleaded guilty necessarily has difficulty in establishing prejudice given that his or her conviction is premisedon an admission of guilt of the crime charged. See Thompson v. State, 307 Ark. 492, 821 S.W.2d 37 (1991).

At the Rule 37 hearing, Ms. Worley testified that she and appellant discussed all of the cases in depth. She said that they went through every case and through the affidavits. The trial court found that counsels' investigation of appellant's case met the objective standard of reasonableness required by Strickland. In addition, the court noted that appellant had failed to alleged that he would not have pled guilty but for counsel's alleged failure to investigate.

In order to satisfy the second element of the Strickland test, Hill, supra, requires that the appellant show that he would not have pled guilty and would have insisted on a trial.

Where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend upon the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction of whether the evidence likely would have changed the outcome of a trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Appellant failed to specify in his petition or at the Rule 37 hearing what new evidence further investigation would have uncovered to change his plea. 2 The allegations were wholly conclusory and will not, therefore, sustain a claim of ineffective assistance of counsel . Ross v. State, 292 Ark. 663, 732 S.W.2d 143 (1987); Pride v. State, 285 Ark. 89, 684 S.W.2d 819 (1985). Nor will general assertions that counsel did not meet with the defendant often enough, or did not aggressively prepare for trial be sufficient. See Travis v. Lockhart, 787 F.2d 409 (8th Cir. 1986), Houston v. Housewright, 678 F.2d 757 (8th Cir. 1982), cert. denied, 459 U.S. 993 (1982).

Taylor also asserts that his attorneys allowed him to plead guilty while under the influence of alcohol and drugs. He contends that their failure to recognize his intoxication caused him to unknowingly waive his right to a jury trial. He further suggests that his intoxicated state at the plea hearing led to a denial of due process. We disagree and affirm.

The record reveals that appellant signed a guilty plea statement which provided that he was not under the influence of drugs, alcohol, medicine, or any other substance which could influence his judgment in entering a plea. The plea statement was signed in the presence of appellant's attorney who testified at the Rule 37 hearing that appellant appeared to understand exactly what he was doing throughout the entire guilty plea process. Ms. Worley said that appellant never appeared to be intoxicated either by drugs or alcohol. She also indicated that appellant was responsive and logical. Co-counsel, Mr. Hunt, supported Ms. Worley version by testifying that appellant did not appear to be under the influence of alcohol or drugs on the date of the plea and sentencing.

The trial court found that appellant's claim that his due process rights were violated due to alcohol and drug use during his case preparation and at the time of his plea was neither believable or supported by the evidence. Even if the evidence is sufficient to support a ruling either way, it cannot be said that the trial court's ruling was clearly against the preponderance of the evidence; the credibility of a witness is a question for the trier of fact in Rule 37 proceedings. Atchison v. State, 298 Ark. 344, 767 S.W.2d 312 (1989). In fact, it is the duty of the court to determine credibility of evidence presented at a Rule 37 hearing. Stephens v. State, 293 Ark. 231, 737 S.W.2d 147 (1987). After a thorough review of the record before us, we cannot say that the trial court's disposition of this issue is clearly against the preponderance of the evidence.

Affirmed.

1 Despite appellant's abstracting deficiency, the limited information provided by appellant appears to be similar to the case of Holloway v. State, 293 Ark. 450, 742 S.W.2d 550 (1987) in which we found that a nighttime search was justified. Thus, appellant has also failed to show that he was prejudiced by counsel's alleged conflict of interest.

2 Appellant has expanded his arguments on appeal from those made below in his Rule 37 petition and before the trial court. Under our standard of review, we look to the arguments and evidence presented below before the trial court. Thus, based on this review, we do not consider the additional facts submitted by appellant for the first time on appeal.