Opinion
No. CR 09-1013
Opinion Delivered March 4, 2010
Pro se Motion for Extension of Time to File Appellant's Brief [Circuit Court of Crittenden County, CR 2009-347, Hon. Ralph Wilson, Judge], Appeal dismissed; motion moot.
Appellant Robert L. Shaw entered a negotiated plea of guilty to first-degree endangering the welfare of a minor, as is reflected in a judgment entered on June 15, 2009. The trial court imposed a sentence of 72 months' imprisonment in the Arkansas Department of Correction. Appellant filed a timely pro se petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2009). The trial court denied the petition, and appellant lodged the instant appeal. He has now filed a motion seeking an extension of time in which to file his brief. Since filing the motion, appellant has tendered his brief.
Because it is clear from the record before us that the petition was without merit, we dismiss the appeal and the motion is moot. An appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Carroll v. State, 2010 Ark. 33 (per curiam). The trial court did not err in denying the petition, and appellant cannot prevail on appeal because appellant did not state sufficient facts to merit relief in his petition.
Appellant set forth a claim of ineffective assistance of counsel for trial counsel's failure to raise certain issues during the negotiations for the plea offer, for counsel's failure to follow the appropriate negotiation procedure, and for counsel's failure to seek compliance with Arkansas Rule of Criminal Procedure 24 (2009). Appellant also raised claims of actual or constructive denial of counsel, prosecutorial misconduct, and denial of due process.
In support of his claim of constructive denial of counsel, appellant reiterated his previous allegations concerning ineffective assistance, complained that counsel did not seek jury sentencing, and asserted that counsel failed to suppress or limit unidentified evidence and did not allow appellant to raise a defense. As to his claim of prosecutorial misconduct, appellant alleged that evidence was withheld and that the prosecution conspired with trial counsel to hide mitigating factors. Appellant reasserted his claim of denial of counsel as a due process violation and additionally alleged that the trial court failed to comply with Rule 24 and with Arkansas Rule of Criminal Procedure 25 (2009).
The trial court's order did not set forth specific findings of fact and conclusions of law as required by Arkansas Rule of Criminal Procedure 37.3 (2009), only indicating generally that the petitioner was entitled to no relief and referencing the plea hearing transcript and other documents in the file as supporting that conclusion. See Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003). This court will affirm the denial of a Rule 37.1 petition notwithstanding the circuit judge's failure to make adequate written findings under Rule 37.3 in two circumstances, as follows: (1) where it can be determined from the record that the petition is wholly without merit; (2) where the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted. Reed v. State, 375 Ark. 277, 289 S.W.3d 921 (2008). It is clear here that the petition did not state allegations so as to warrant relief and that the petition was wholly without merit.
Because appellant entered a guilty plea, the claims cognizable in a petition for postconviction relief were limited to those that alleged that the plea was not made voluntarily and intelligently or was entered without effective assistance of counsel. Jamett v. State, 2010 Ark. 28, ___ S.W.3d ___ (per curiam). As a result, the only claims we need consider as possibly cognizable are those raised in the petition asserting ineffective assistance of counsel.
To the extent that appellant alleged the procedure concerning the plea hearing was improper, only that portion of his claim as it concerned ineffective assistance was cognizable. See O'Connor v. State, 367 Ark. 173, 238 S.W.3d 104 (2006) (per curiam). There was no jury trial for adversarial testing, and appellant did not allege that counsel was not in attendance at the plea hearing, was not an attorney, or was unlicensed. His claims of constructive denial of counsel amounted to no more than further claims of ineffective assistance of counsel. See Bell v. Cone, 535 U.S. 685 (2002) (the presumption-of-prejudice exception is recognized (1) where assistance of counsel has been denied completely during a critical stage of the proceedings; (2) where counsel entirely fails to subject the prosecution's case to meaningful adversarial testing; (3) where counsel is called upon to render assistance under circumstances where competent counsel very likely could not). The only claims in the petition to be examined, therefore, are actual ineffectiveness claims.
Actual ineffectiveness claims, such as the ones under consideration here, that allege deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007). In order to satisfy this requirement, where the judgment was based upon a guilty plea, a petitioner must demonstrate that there was a reasonable probability that, but for counsel's error, he would not have pled guilty and would have insisted on going to trial. French v. State, 2009 Ark. 443 (per curiam). Appellant failed to set forth any factual basis in the petition to support a claim of prejudice.
Appellant's claims concerning procedural defects in the plea proceedings, failure to comply with Rule 24, and counsel's failure to seek suppression of evidence or raise a defense were conclusory; the allegations listed no evidence withheld or defense to be raised, and identified no specific error or defect in the proceedings from which any prejudice could have resulted, only asserting that the procedures were not compliant. Conclusory statements cannot be the basis of postconviction relief. State v. Brown, 2009 Ark. 202, ___ S.W.3d. ___.
Appellant's other allegations of error, those concerning the negotiation procedures, counsel's inaction in raising issues in the negotiations, and counsel's failure to request jury sentencing, would not have had any impact on appellant's ultimate decision to accept the plea offer that he received. Allegations that counsel might have been able to obtain a better plea offer, or that counsel could have placed the petitioner in a position to potentially receive a more favorable sentence on his plea, are not the type of allegations that would support a finding of prejudice when the petitioner has entered a guilty plea. See Buchheit v. State, 339 Ark. 481, 6 S.W.3d 109 (1999) (per curiam) (in the context of a guilty plea, a petitioner must show that there is a reasonable probability that he would not have pleaded guilty and would have insisted on going to trial); see also Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986) (a defendant whose conviction is based on a plea of guilty ordinarily will have difficulty in proving prejudice since his plea rests on the admission in court that he did the act with which he is charged, and any claims of constitutional deprivation or other defenses, excepting jurisdiction, that occurred prior to the entry of his guilty plea are waived). Even if true, such allegations do not provide the factual underpinnings needed to assert that, but for counsel's errors, the petitioner would not have pled guilty.
Because appellant did not set forth facts in the petition sufficient to state a cognizable claim, the allegations in the petition did not warrant relief, and the petition was clearly without merit. We accordingly dismiss the appeal and appellant's motion is moot.
Appeal dismissed; motion moot.