Heard v. State, CR 10-808
| Decision Date | 16 February 2012 |
| Docket Number | No. CR 10-808,CR 10-808 |
| Citation | 2012 Ark. 67 |
| Parties | BRIAN K. HEARD a/k/a BRYAN K. HEARD APPELLANT v. STATE OF ARKANSAS APPELLEE |
| Court | Arkansas Supreme Court |
Appellant Brian K. Heard, who is also known as Bryan K. Heard, brings an appeal of the denial of his pro se petition for postconviction relief from two judgments entered in 2009 on a number of drug-related charges. Appellant, now represented by counsel, raises a single point on appeal, alleging error in that the trial court should have found that appellant's guilty plea was coerced and that trial counsel was ineffective. There was no clear error in the trial court's findings, and we affirm.
The two judgments reflect that appellant entered negotiated guilty pleas to a total of four counts of delivery of a controlled substance as to various drugs and that eleven other charges in the two cases were nolle prossed. The plea agreement indicated that appellant was sentenced by the court in a separate hearing, and the sentences imposed were to run consecutively for an aggregate sentence of 1200 months' incarceration for both judgments.
Appellant filed a timely, verified, pro se petition under Arkansas Rule of CriminalProcedure 37.1 (2011) that raised five claims for postconviction relief.1 In the first of those claims, appellant alleged that trial counsel had strongly urged him to enter a guilty plea and throw himself on the mercy of the court. He went on to assert that counsel had failed to properly advise him of the amount of time to which he could have been sentenced; that counsel's advice was unprofessional and unreasonable; and that counsel provided faulty advice that, in counsel's experience, appellant would receive less than the fifty years offered by the State if the court imposed a sentence without that recommendation.
At the postconviction-relief hearing, appellant, then represented by counsel, testified that his attorney had sent a letter to appellant's mother that stated that additional fees would be charged for counsel's representation in the event that appellant's case went to trial. Appellant testified that he had no more money with which to pay counsel and had no choice but to enter a guilty plea. In his testimony, appellant indicated that counsel had not advised him that the court could stack the sentences. He stated that, if he had realized that he could get 100 years, he would have insisted on going to trial. Appellant testified that he had to make the decision because the court had denied his motion to suppress evidence. Appellant stated that the prosecutor had been offering fifty years when appellant hired counsel and that counsel had promised to work the offer down to fifteen years. On appeal, appellant contends that counsel's actions coerced him into accepting the plea agreement, and that, but for counsel's unethical conduct and errors, he would not have entered a guilty plea.
The burden is on the petitioner to prove his allegations for postconviction relief. Henson v. State, 2011 Ark. 375 (per curiam). We do not reverse a denial of postconviction relief unless the circuit court's findings are clearly erroneous. Id. 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. Id.
With the exception of claims that present an indirect attack on the judgment or that allege fundamental error relating to a separate sentencing proceeding, cognizable claims where a defendant pleads guilty are limited to those asserting that the petitioner's plea was not entered intelligently and voluntarily upon advice of competent counsel. Sandoval-Vega v. State, 2011 Ark. 393, _ S.W.3d _ (per curiam). We assess the effectiveness of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Biddle v. State, 2011 Ark. 358 (per curiam). A defendant making an ineffective-assistance-of-counsel claim must show that his 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 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 pled guilty and would have insisted on going to trial. Id.
In the order denying postconviction relief, the trial court found that appellant made "an independent...
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