Alan G. Hubbard v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MARCH 15, 2001

ALAN G. HUBBARD

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 99-433

AN APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY,

NO. CR 90-36

HONORABLE JOHN W. LANGSTON,

CIRCUIT JUDGE

AFFIRMED

On October 10, 1990, appellant, Alan Glenn Hubbard, pleaded guilty to first-degree murder and was sentenced to life imprisonment in the Arkansas Department of Correction. At the time of appellant's conviction, Arkansas Criminal Procedure Rule 37 had been abolished and replaced with Rule 36.4. Under Rule 36.4, a criminal defendant who wished to raise a claim of ineffective assistance of counsel had to do so in a motion for a new trial within thirty days of the date of the judgment. Appellant did not file such a motion, but sought habeas corpus relief pursuant to 28 U.S.C. § 2254 in federal court. The federal district court issued a conditional writ of habeas corpus that provided that a writ would issue within 120 days unless appellant was permitted to pursue postconviction relief in state court. Pursuant to the order of the federal court, appellant filed a petition for postconviction relief in circuit court arguing that the District Court did not have authority to direct the state trial court to conduct a hearing under Rule 36.4 and that counsel wasineffective for failing to inform appellant about the effect of a guilty plea or the effect of pleading guilty as a habitual offender with four or more prior convictions. The trial court denied appellant's petition. This appeal followed.

On appeal, appellant argues that the trial court did not have jurisdiction to entertain appellant's Rule 36.4 petition. In support of this argument, appellant contends that the federal court lacked the authority to require the trial court to hold a hearing or take action. Appellant cites to Nail v. State, 315 Ark. 675, 869 S.W.2d 705 (1994) for authority.

In Nail, we observed that the District Court had no authority to order or direct a trial court or the Arkansas Supreme Court to take any action. In this case, however, the District Court did not order or direct the trial court to hold a hearing. The District Court ordered that a writ of habeas be granted unless the State of Arkansas affords appellant an opportunity within 120 days to pursue postconviction relief. The trial court had the discretion whether or not to hear appellant's 36.4 petition. Thus, the District Court did not exceed its authority, and the trial court properly exercised its jurisdiction.

Next, appellant argues that counsel was ineffective for failing to inform him of the consequences of his plea. Appellant contends that his counsel, Mr. Jerry Sallings, indicated that appellant would receive a lesser sentence than life. In support of this contention, appellant relies on the plea statement which he argues does not reflect that appellant was being charged as a habitual offender.

Although appellant's motion originated under the former Rule 36.4, our task on appeal is no different. We must still determine whether the Circuit Court's decision to deny postconviction relief was clearly erroneous. See Hudson v. State, 294 Ark. 148, 741 S.W.2d 253 (1987). In view of the testimony by Mr. Sallings and the testimony of appellant at the plea hearing that he understood thepossible penalties he could receive and that he was being sentenced as a habitual offender, we find that the trial court's findings are not clearly erroneous. Although there was testimony at the postconviction hearing by appellant that he was not aware that he was being charged as a habitual criminal, Judge John Langston was not required to believe appellant, especially since he had an interest in the outcome of the proceeding. Id. At a postconviction hearing, the credibility of witnesses is for the trial judge to determine. Stephens v. State, 293 Ark. 231, 737 S.W.2d 147 (1987).

Affirmed.