Summary
In Elmore v. State, 285 Ark. 42, 684 S.W.2d 263 (1985), we again granted a hearing on an allegation of an uncommunicated plea bargain, but Elmore also involved a prosecutor's affidavit attesting that the offer was in fact made.
Summary of this case from Scott v. StateOpinion
No. CR 85-25.
Opinion delivered February 18, 1985
1. CRIMINAL PROCEDURE — ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL — PRESUMPTION OF COMPETENCE. — To prevail on an allegation of ineffective assistance of counsel, the petitioner has the heavy burden of overcoming the presumption that counsel is competent. 2. ATTORNEY CLIENT — PRESUMPTION OF EFFECTIVE ASSISTANCE OF COUNSEL — PROOF NECESSARY TO OVERCOME. — The presumption of effective assistance of counsel cannot be overcome without factual substantiation for the allegation sufficient to show that counsel's conduct undermined the adversarial process and resulted in actual prejudice to the degree that petitioner was denied a fair trial. 3. APPEAL ERROR — APPELLATE COURT WILL NOT PERUSE RECORD TO DETERMINE SUPPORT FOR ALLEGATION. — The appellate court will not peruse the record in an attempt to determine what factual grounds, if any, exist for an allegation. 4. CRIMINAL LAW — PLEA AGREEMENT IS BETWEEN ACCUSED AND PROSECUTOR — DUTY OF COUNSEL TO ADVISE CLIENT OF OFFER. — A plea agreement is an agreement between the accused and the prosecutor, not an agreement between counsel and the prosecutor; as such, counsel has the duty to advise his client of an offer of a negotiated plea. 5. CRIMINAL PROCEDURE — ALLEGATION BY RULE 37 PETITIONER THAT PROSECUTOR OFFERED TO PLEA BARGAIN BUT COUNSEL DID NOT ADVISE PETITIONER — PETITIONER MUST ALLEGE HE WOULD HAVE ACCEPTED PLEA. — Before the appellate court will order an evidentiary hearing in circuit court regarding petitioner's allegation that the prosecutor offered to plea bargain but his attorney never advised him of the offer, the petitioner must allege that he would have accepted the plea.
Petition to proceed in Circuit Court of Pulaski County, First Division, pursuant to Criminal Procedure Rule 37; petition denied without prejudice in part and denied with prejudice in part.
John Wesley Hall, Jr., for petitioner.
Steve Clark, Atty Gen. by: Michael E. Wheeler, Asst. Atty Gen., for respondent.
Petitioner was found guilty by a jury of attempted capital murder and fleeing. He was sentenced to terms of ten and three years imprisonment in the Arkansas Department of Correction. The Court of Appeals affirmed. Elmore v. State, 13 Ark. App. 221, 682 S.W.2d 759 (1985). Petitioner has now filed a petition for postconviction relief pursuant to A.R.Cr.P. Rule 37 on the allegation that his trial attorney, Bob Scott, was ineffective.
Petitioner alleges that counsel failed to subpoena witnesses, did not prepare for trial adequately, and was ineffective in the questioning of witnesses. He also contends that there was a conflict of interest because counsel intended to file a civil suit in petitioner's behalf, the outcome of which was likely to be affected by the outcome of the criminal proceeding.
To prevail on an allegation of ineffective assistance of counsel, the petitioner has the heavy burden of overcoming the presumption that counsel is competent. Travis v. State, 283 Ark. 478, 678 S.W.2d 341 (1984). The presumption cannot be overcome without factual substantiation for the allegation sufficient to show that counsel's conduct undermined the adversarial process and resulted in actual prejudice to the degree that petitioner was denied a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Petitioner has not met that burden.
Petitioner offers no proof that the civil suit affected counsel's conduct at trial. He also fails to provide in the petition specific instances of poor trial performance beyond the general statement that the questioning of witnesses was inadequate. Petitioner's allegation that counsel did not subpoena witnesses would be deserving of an evidentiary hearing, but petitioner fails to state in the petition what the witnesses' testimony would have been. As a result, we cannot determine whether the witnesses were important to the defense. This Court will not peruse the record in an attempt to determine what factual grounds, if any, exist for an allegation. Hill v. State, 278 Ark. 194, 664 S.W.2d 282 (1983).
Petitioner also contends that the prosecutor offered to recommend a suspended sentence on the fleeing charge and drop the attempted capital murder charge if petitioner would enter a guilty plea. He alleges that counsel never communicated the plea offer to him. The affidavit of the deputy prosecutor is attached to the petition verifying that he discussed the negotiated plea with counsel but counsel refused it.
We have held that a plea agreement is an agreement between the accused and the prosecutor, not an agreement between counsel and the prosecutor. Rasmussen v. State, 280 Ark. 472, 658 S.W.2d 867 (1983); see also A.R.Cr.P. 25.2. As such, counsel has the duty to advise his client of an offer of a negotiated plea. Before this Court will order an evidentiary hearing in circuit court, however, the petitioner must allege that he would have accepted the plea. Accordingly, the petition is denied without prejudice to the filing of a subsequent petition addressing the failure to communicate a plea bargain. In all other respects the petition is denied with prejudice.
Petition denied without prejudice in part and with prejudice in part.
HAYS, J., would deny.