Myers v. State, No. CR 11–111.

• Court: Supreme Court of Arkansas
• Writing for the Court: JIM GUNTER
• Citation: 400 S.W.3d 231,2012 Ark. 143
• Decision Date: 05 April 2012
• Docket Number: No. CR 11–111.
• Parties: Michael Wade MYERS and Scott Lynn Hall, Appellants v. STATE of Arkansas, Appellee.

2012 Ark. 143
400 S.W.3d 231

Michael Wade MYERS and Scott Lynn Hall, Appellants
v.
STATE of Arkansas, Appellee.

No. CR 11–111.

Supreme Court of Arkansas.

April 5, 2012.

[400 S.W.3d 233]

John Wesley Hall, Little Rock, for appellants.

Dustin McDaniel, Atty. Gen., Vada Berger, Asst. Atty. Gen., Little Rock, for appellee.

JIM GUNTER, Justice.

[2012 Ark. 1]Appellants Michael Wade Myers and Scott Lynn Hall appeal the dismissal of their Rule 37 petitions and assert that their trial counsel was ineffective in (1) failing to raise an objection to appellants' convictions for both possession of drug paraphernalia with intent to manufacture methamphetamine and manufacturing methamphetamine; (2) failing to object to appellants' convictions for both possession of methamphetamine with intent to deliver and manufacturing methamphetamine; (3) failing to object to appellants' convictions for possession of methamphetamine with intent to deliver; and (4) failing to challenge the unconstitutional repeal of the seventy-percent provision of Ark.Code Ann. § 16–93–611. We find no error and affirm.

In criminal informations filed May 23, 2003, appellants were charged with manufacturing methamphetamine, possession of drug paraphernalia with intent to manufacture methamphetamine, and possession of drug paraphernalia. In addition, Myers was [2012 Ark. 2]charged as a habitual offender. On January 26, 2004, amended informations were filed adding a charge of possession of methamphetamine with intent to manufacture against both Myers and Hall. At the beginning of trial, however, the State clarified that it had intended to charge Myers and Hall with possession of methamphetamine with intent to deliver and that the “intent to manufacture” language in the amended information was a typo. Appellants' counsel stated that he had noticed the error and understood that it was just a typo. Hall's amended information was corrected by the court by hand to show that he was charged with possession of methamphetamine with intent to deliver; however, at the close of the State's evidence, the State moved to reduce the charge against Myers to simple possession of methamphetamine.

A jury found appellants guilty of manufacturing methamphetamine, possession of drug paraphernalia with intent to manufacture methamphetamine, and possession of

[400 S.W.3d 234]

drug paraphernalia. In addition, Myers was found guilty of possession of methamphetamine, and Hall was found guilty of possession of methamphetamine with intent to deliver. In judgment and commitment orders filed December 9, 2005, Myers was sentenced to twenty-four years' imprisonment, and Hall was sentenced to twenty years' imprisonment. Appellants' convictions were affirmed by the court of appeals in an unpublished opinion filed March 21, 2007.

Thereafter, on July 2, 2007, appellants both filed petitions for postconviction relief under Ark. R.Crim. P. 37. Both petitions argued that appellants' trial counsel was ineffective for (1) failing to raise an objection to appellants' convictions for both possession of drug paraphernalia with intent to manufacture methamphetamine and manufacturing [2012 Ark. 3]methamphetamine, as possession of drug paraphernalia with intent to manufacture is a lesser-included offense of manufacturing; (2) failing to object to appellants' convictions for both possession of methamphetamine with intent to deliver and manufacturing methamphetamine, as possession of methamphetamine with intent to deliver is a lesser-included offense of manufacturing; (3) failing to object to appellants' convictions for possession of methamphetamine with intent to deliver, as appellants were not charged with this offense; and (4) failing to object when appellants' sentences were ordered to run consecutively. On September 3, 2008, both appellants filed amended petitions that omitted the argument regarding consecutive sentences and included an additional argument that trial counsel was ineffective for not challenging the unconstitutional repeal of the seventy-percent provision of Ark.Code Ann. § 16–93–611(a). ¹

On January 5, 2010, a second amended petition was filed by Hall, and on January 6, 2010, a second amended petition was filed by Myers; both second amended petitions argued the same points as the September 3, 2008 petitions. On July 16, 2010, a brief in support of the petitions was filed on behalf of both appellants.² The State responded to appellants' petitions and brief on September 16, 2010, and after a brief hearing on September 20, 2010, [2012 Ark. 4]the court entered orders on October 4, 2010, denying postconviction relief as to both appellants. Appellants then filed notices of appeal on November 3, 2010.

We do not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). 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. Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002).

In reviewing claims of ineffective assistance of counsel, the question presented to this court is whether, based on the totality of the evidence, the circuit court clearly erred in holding that counsel's performance did not constitute ineffective assistance

[400 S.W.3d 235]

of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the standard set forth in Strickland, to determine ineffective assistance of counsel, the petitioner must show first that counsel's performance was deficient. Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Id. A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel that, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.

[2012 Ark. 5]Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Id. The petitioner must show there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.

Furthermore, unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. Id. Actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. Id. Additionally, the burden is on the petitioner to provide facts to support his claim of prejudice. Id.

For their first point on appeal, appellants contend that possession of drug paraphernalia with intent to manufacture methamphetamine is a lesser-included offense of manufacturing methamphetamine and that being convicted of both charges is a double-jeopardy violation to which their trial counsel should have objected.³ In its order, the circuit court found that under Arkansas law, possession of drug paraphernalia with the intent to manufacture [2012 Ark. 6]methamphetamine is not a lesser-included offense of manufacturing methamphetamine, citing Hester v. State, 362 Ark. 373, 208 S.W.3d 747 (2005). Therefore, the court found, trial counsel was not ineffective for failing to raise this argument. In...