Opinion
CR 08-1160
Opinion Delivered September 16, 2010
Appeal from the Circuit Court of Pulaski County, CR 2004-3368, Hon. Barry A. Sims, Judge, Affirmed.
In 2005, appellant Anthony Hampton entered a negotiated plea of guilty to charges of aggravated robbery and theft of property. The trial court imposed 540 months' imprisonment on the aggravated robbery charge and 300 months' imprisonment on the theft charge, running the sentences concurrently for an aggregate term of 540 months. The sentences were enhanced under Arkansas Code Annotated § 5-4-501(a) (Supp. 2006). As a part of the negotiated plea, the State nolle prossed two counts of first-degree terroristic threatening, one count of committing a terroristic act, and two counts of possession of a firearm by certain persons. Also as a part of the plea agreement, the State agreed to drop a habitual offender allegation under section 5-4-501(d) that had been listed in the information.
Appellant, through counsel, timely filed in the trial court a verified petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2005) that was denied. On appeal, this court reversed and remanded for written findings of fact and conclusions of law. Hampton v. State, CR 06-808 (Ark. Feb. 22, 2007) (unpublished per curiam). The trial court entered an order on remand, again denying postconviction relief, and this court granted appellant's subsequent motion for belated appeal. Hampton v. State, 374 Ark. 527, 288 S.W.3d 643 (2008) (per curiam). On appeal, appellant alleges that the trial court erred in not finding that trial counsel was ineffective for failing to correct a misstatement made by the trial court during the plea hearing concerning appellant's eligibility for parole. We find no error and affirm.
The trial court stated that appellant would be required to serve at least seventy percent of the time sentenced. Appellant alleges that Arkansas Code Annotated § 16-93-609 (Supp. 2006) is applicable because he has a prior violent-felony conviction and would prohibit his eligibility for parole.
This court does not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous. Dunlap v. State, 2010 Ark. 111 (per curiam). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Britt v. State, 2009 Ark. 569, ___ S.W.3d ___ (per curiam).
In its order denying postconviction relief, the trial court found that the trial court had informed appellant that parole was at the discretion of the Arkansas Department of Correction, that trial counsel was unaware of a statute under which appellant would be ineligible for parole, and that counsel would have corrected the statement by the trial court if he had been aware of the statute. The trial court noted that counsel had invoked the attorney-client privilege when questioned concerning the advice he had given appellant about the time he would have to serve on the sentence in the plea offer and found that the circumstances presented did not show that counsel was ineffective. The court added that, because appellant had not testified that he would have insisted on going to trial and would not have entered a guilty plea if counsel had correctly advised him concerning the amount of time that he would have to serve, appellant had not shown the required prejudice.
As we noted in our prior opinion reversing for written findings, it was not clear from the record that appellant was present at the hearing on the Rule 37.1 petition. The trial court cites to the testimony, or the lack of it, at that hearing as a basis for its findings, as if that hearing had been conducted in accord with Arkansas Rule of Criminal Procedure 37.3(c) (2010). Neither appellant nor the State have contested that the hearing was properly conducted.
Appellant had the burden to prove his allegations for postconviction relief. Viveros v. State, 2009 Ark. 548 (2009) (per curiam). We assess the effectiveness of counsel under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Polivka v. State, 2010 Ark. 152, ___ S.W.3d ___. A defendant making an ineffective-assistance-of-counsel claim must show that his or her counsel's performance fell below an objective standard of reasonableness and that this deficient performance prejudiced the defense. Id. In order for a defendant to show that he or she was specifically prejudiced by counsel's deficient assistance prior to, or during, the entry of the defendant's guilty plea, the defendant must show that a reasonable probability exists that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial. See id.
The trial court concluded that appellant had not shown that counsel's performance was deficient or demonstrated any prejudice under this standard. The trial court did make a statement along with the misstatement concerning parole that, although less than clear, cautioned that the Arkansas Department of Correction would ultimately determine any parole eligibility for appellant. The record shows that the court said, "What the Department of Correction does with you is basically up to them, but you must serve at least seventy percent of any time you get, which is seven out of ten years; you understand that?" Even if he was unaware of the statute that limited appellant's parole eligibility, trial counsel may well have cautioned appellant that he could not depend upon any assurances that parole would shorten the time he was required to serve; no evidence was presented concerning what advice counsel provided.
Neither the State nor Rule 37.1-proceeding counsel challenged trial counsel's assertion of privilege in a Rule 37.1 proceeding.
Appellant also failed to demonstrate that he was prejudiced by the misstatement concerning parole eligibility. There was testimony at the Rule 37.1 petition hearing that the prosecution "nolle prossed" or declined to put on proof that appellant was a habitual offender. The testimony was that those allegations, if proved, would have subjected appellant to a life sentence. Based upon the potential sentence without the plea agreement, the trial court did not clearly err in finding appellant had not shown he would have rejected the plea offer and gone to trial, had he been fully and correctly advised as to his eligibility for parole. See Garmon v. State, 290 Ark. 371, 719 S.W.2d 699 (1986); see also Cranford v. State, 303 Ark. 393, 797 S.W.2d 442 (1990). An appellant who has pleaded guilty normally will have considerable difficulty in proving any prejudice as the plea rests upon an admission in open court that the appellant did the act charged. Jamett v. State, 2010 Ark. 28, ___ S.W.3d ___ (per curiam).
Because appellant did not meet his burden of proof as to either prong of the Strickland test, the trial court did not clearly err in denying the Rule 37.1 petition. We accordingly affirm the denial of postconviction relief.
Affirmed.