Robby Glynn Walling v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

April 26, 2001

ROBBY GLYNN WALLING

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 99-690

APPEAL FROM THE CIRCUIT COURT OF SEVIER COUNTY, NO. CR 98-18, HONORABLE CHARLES A. YEARGAN, CIRCUIT JUDGE

AFFIRMED

Appellant, Robby Glynn Walling, pled guilty to possession of methamphetamine with intent to deliver in the Sevier County Circuit Court in September, 1998. The trial court accepted his plea, and sentenced appellant to twenty years' imprisonment. Appellant subsequently filed a petition to withdraw his guilty plea that raised claims of ineffective assistance of counsel. The trial court conducted a hearing, and denied the petition. In this appeal, appellant submits three reasons why the trial court erred in denying relief on his claims. We find no error and affirm.

The trial court correctly treated appellant's petition as a request for relief pursuant to Ark. R. Crim. P. 37 because it was filed after sentence was entered and placed in execution. See Johninson v. State, 330 Ark. 381, 385, 953 S.W.2d 883, 884 (1997). 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 thosewhich 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. at 389, 953 S.W.2d at 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 first contends that his counsel was ineffective in failing to move to quash the search warrant and suppress the evidence based on the method by which the warrant was issued and served. This claim cannot be raised in a Rule 37 proceeding challenging a guilty plea. Mills v. State, 338 Ark. 603, 606, 999 S.W.2d 674, 675 (1999). When appellant pleaded guilty, he waived the right to challenge the validity of the search warrant and the manner in which it was served. See id. To the extent appellant's argument alleges that his counsel was ineffective in failing to advise him about the issues involved in challenging the warrant, it is without merit. The trial court credited the testimony of appellant's counsel that she informed him of the denial of his co-defendant's suppression motion and discussed with him the issues involved. We defer to the superior positionof the trial judge in matters of credibility, and the trial judge is not required to believe the testimony of any witness, especially that of the accused. Rankin v. State, 338 Ark. 723, 729-32, 1 S.W.3d 14, 732-33 (1999).

Appellant next claims that his counsel gave erroneous advice regarding his culpability for the crime charged against him, manufacture of methamphetamine, because he was merely a joint occupant of the residence where the manufacturing was occurring. He argues that his counsel's advice impacted his decision to plead guilty. The flaw in appellant's argument lies in his emphasis on the alleged lack of possession of the contraband. While appellant pleaded guilty to possession of methamphetamine with intent to deliver, he was charged with manufacture of methamphetamine. Manufacture means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container. Ark. Code Ann. 5-64-101 (m). As found by the trial court, the testimony at the hearing showed that appellant was involved in the manufacture of methamphetamine. There was evidence that appellant sought ingredients necessary for the creation of methamphetamine from a confidential informant, that the informant delivered the ingredient to the house where appellant and his accomplices were staying, that appellant's accomplices were discovered manufacturing methamphetamine in the house upon the execution of the search warrant, that ingredients necessary for the manufacture of methamphetamine and methamphetamine residue were found in appellant's truck, and that appellant was the person who brought the accomplices to the house used to manufacture the methamphetamine. Moreover, appellant's trial counsel testified at the hearing that she advised appellant on the strengths and weaknesses of the case against him, and on how a jurycould find him guilty of manufacture of methamphetamine despite the fact that he was not in the room where the manufacture was occurring when the police executed the warrant. Trial counsel also testified that a negotiated plea was sought so that appellant would not be subject to serving seventy percent of any jail time if found guilty at trial of manufacturing methamphetamine. Appellant testified at the hearing that he was aware of the seventy percent rule before he entered his plea, and that he was aware that his co-defendant has been sentenced to forty years imprisonment after a jury trial in which he was found guilty of the manufacture of methamphetamine. 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.

Appellant's final claim is twofold. He contends that his counsel was ineffective for failing to develop the defense of entrapment. Because appellant pled guilty, this claim is not cognizable under Rule 37. See Herred, supra. Appellant also contends that his counsel was ineffective for failing to adequately advise him of the entrapment theory before he pled guilty. The trial court did not specifically rule on this issue in denying appellant's petition. It is appellant's obligation, however, to obtain a ruling in order to properly preserve an issue for review. Beshears v. State, 340 Ark. 70, 72, 8 S.W.3d 32, 34 (2000). Therefore, we decline to consider the issue on appeal.

Affirmed.