Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wilson v. State

Court of Appeals of Arkansas, Division III

August 29, 2018



          Lamar Daniel Ron Wilson, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

          ROBERT J. GLADWIN, Judge.

         Lamar Daniel Ron Wilson appeals from an order of the Garland County Circuit Court denying his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2017). He claims on appeal that his trial counsel was grossly ineffective, arguing that the circuit court lacked subject-matter jurisdiction and that his trial counsel, by not arguing this point, violated Wilson's due-process rights. We affirm.

         I. Procedural History

         Wilson was charged with the rape of a nine-year-old. After a jury trial, he was acquitted of rape but convicted of second-degree sexual assault and sexual indecency with a minor after the jury was erroneously instructed on these two charges. Wilson was sentenced to twenty years' imprisonment on the sexual-assault conviction. Because Wilson had been charged only with rape, he filed a motion for new trial, arguing that second- degree sexual assault was not a lesser-included offense of rape. In its response, the State admitted that the sexual-assault charge was not a lesser-included offense of rape but asked that the circuit court enter the jury's determination of guilt on the sexual-indecency charge.

         At the hearing on Wilson's motion for new trial, defense counsel announced that an agreement had been reached wherein Wilson pleaded no contest to sexual indecency with a minor, and a plea and waiver was introduced that had been signed by Wilson, his counsel, and the prosecutor. Based on the plea agreement, the circuit court sentenced Wilson to six years' imprisonment, and a sentencing order was filed on October 5, 2015.

         On October 8, 2015, Wilson filed a motion to vacate the judgment, arguing that he had never been charged with the offense of sexual indecency with a child and that no amendments to his charge had been made. The circuit court denied Wilson's motion, and Wilson filed a timely notice of appeal. However, Wilson's counsel filed a no-merit brief and motion to withdraw; Wilson did not file pro se points for reversal, and this court granted counsel's motion and affirmed Wilson's conviction. Wilson v. State, 2017 Ark.App. 385.

         Wilson filed a Rule 37 petition in the circuit court within sixty days of this court's mandate, see Ark. R. Crim. P. 37.2(c)(ii), arguing that his trial counsel was ineffective on six grounds: (1) failing to object to "having the court hold Wilson for any other charge/offense due to the acquittal of the jury during Wilson's jury trial"; (2) failing to investigate jurisdiction; (3) "violation of the Constitutional Due-Process Clause"; (4) "Judge Hearnsberger's unfairness, Sixth Amend. Violation"; (5) failing to move to withdraw Wilson's plea; and (6) "lack of jurisdiction by State's violation of Due Process."

         The circuit court denied the petition without a hearing and entered an order containing specific findings on each ground as alleged in Wilson's petition. First, the court ruled that Wilson had not been acquitted; rather, the jury convicted him of second-degree sexual assault and sexual indecency with a child. Second, the court found that Mr. Adams, defense counsel, had not been ineffective for failing to challenge the circuit court's jurisdiction because the court had proper jurisdiction of the case; moreover, a jurisdictional challenge could have been made at trial or on direct appeal, and one had not been made. Third, the court ruled that there had been no due-process violation because Wilson pleaded nolo contendere to the amended charge of sexual indecency with a child and that he had not raised a due-process argument on appeal. Fourth, the court ruled that Wilson had not been "bullied, pushed, and hoodwinked" into entering his plea; moreover, Wilson had stated in court that he understood what he was doing and was satisfied with Mr. Adams's representation of him. Fifth, Mr. Adams was not ineffective for failing to move to withdraw the plea; Wilson, acting pro se, had unsuccessfully moved to vacate the judgment and did not challenge that ruling on appeal. Sixth, Wilson did not challenge the circuit court's jurisdiction or make a due-process argument on appeal. This appeal timely followed.

         II. Standard of Review and Applicable Law

          We do not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous. Johnson v. State, 2018 Ark. 6, at 2, 534 S.W.3d 143, 146. A finding is clearly erroneous when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that the circuit court made a mistake. Id. "The benchmark for judging a claim of ineffective assistance of counsel must be 'whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' Strickland [v. Washington, 466 U.S. 668, (1984)]." Mancia v. State, 2015 Ark. 115, at 4, 459 S.W.3d 259, 264 (citing Henington v. State, 2012 Ark. 181, at 3-4, 403 S.W.3d 55, 58). Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance of counsel must show that his counsel's performance fell below an objective standard of reasonableness. Id. A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.

         Second, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Mancia, 2015 Ark. 115, at 4-5, 459 S.W.3d at 264. 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. Mancia, 2015 Ark. 115, at 5, 459 S.W.3d at 264. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. Additionally, conclusory statements that counsel was ineffective cannot be the basis for postconviction relief. Id.

         A person seeking postconviction relief on a claim of ineffective assistance that is based on the failure of counsel to make a motion or objection must show that counsel could have made a successful argument in order to demonstrate the prejudice required under the Strickland test. Breeden v. State, 2014 Ark. 159, at 6-7, 432 S.W.3d 618, 624 (per curiam). Failure to make a meritless objection or motion does not constitute ineffective assistance of counsel. Id.; Greene v. State, 356 Ark. 59, 70, 146 S.W.3d 871, 880 (2004).

         When a petitioner attacks a plea of guilty in a postconviction petition, the only issues considered by this court are whether the petitioner entered the plea knowingly and intelligently, with the advice of competent counsel, and whether the circuit court had subject-matter jurisdiction over the criminal offense to which the defendant pleaded guilty. Zoller v. State, 282 Ark. 380, 669 S.W.2d 434 (1984).

         III. Arguments Not Preserved

         In his petition below, Wilson argued six numbered grounds as set forth above. On appeal, Wilson's argument is divided into three sections: (1) subject-matter jurisdiction; (2) ineffective-counsel and due-process violations; and (3) conclusion. Because Wilson's argument does not mirror the petition filed below, there are arguments Wilson presents on appeal that were never presented for the circuit court's consideration. It is appellant's obligation to obtain a ruling from the circuit court in order to properly preserve an issue for review. Beshears v. State, 340 Ark. 70, 72, 8 S.W.3d 32, 34 (2000). Thus, Wilson's arguments that "a plea bad in part is bad for the whole," "the rules of new trial do not permit new charges," and "charges cannot be orally amended" are not preserved for appellate review.

         IV. Preserved Arguments

         With regard to the arguments made on appeal that correlate to the petition denied below, Wilson contends that the record is devoid of a valid charging instrument regarding sexual indecency with a child. Because there was no charging instrument on sexual indecency, Wilson contends that his negotiated plea is invalid because the "State did not acquire proper jurisdiction from pleadings," citing Hall v. State, 326 Ark. 823, 933 S.W.2d 363 (1996) (wherein a properly signed amended information gave jurisdiction to the circuit court).

         In an appeal from the denial of a petitioner's habeas corpus petition, the Arkansas Supreme Court stated,

Unquestionably, the appellant here had been correctly charged with murder and the trial court, entering its conviction, clearly had jurisdiction over appellant's person as well as the criminal matter involved. Appellant's actual argument is that the trial court was somehow divested of that jurisdiction upon his requesting, and the court's granting, an erroneous instruction which resulted in his conviction of a different felony from the one charged, viz., hindering apprehension instead of murder. We cannot agree.
As we have already pointed out, the trial court had both personal and subject matter jurisdiction of this case. While the court may have erred at trial by granting appellant's request to instruct the jury on hindering apprehension as a lesser included offense, this error would not take away the court's subject matter jurisdiction. Appellant could have appealed the trial court's ruling to determine whether the hindering apprehension instruction was erroneously given and reversible or whether he invited such error for which he could not complain. See Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). In other words, if the trial court erred in its decision or proceeded irregularly within its assigned jurisdiction, as was the case here, the appellant's remedy was by direct action in the erring court or by appeal.

Birchett v. State, 303 Ark. 220, 221-22, 795 S.W.2d 53, 54 (1990). Based on the reasoning in Birchett, we hold that the circuit court had jurisdiction over Wilson after the circuit court erred by instructing the jury on offenses that were not lesser-included offenses of rape. Because the circuit court had jurisdiction to accept Wilson's plea and to sentence him, his counsel was not ineffective for failing to make a frivolous objection to the court's jurisdiction. E.g., Cox v. State, 365 Ark. 358, 229 S.W.3d 883 (2006).

         Wilson also contends that he was twice convicted for the same offense because his conviction for sexual indecency with a child had been vacated when he pleaded no contest to the same charge; thus, he contends that his plea was a violation of double jeopardy. Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993). The circuit court's order does not address Wilson's double-jeopardy argument because the argument was made in relation to Wilson's contention that his counsel was ineffective for failing to "investigate jurisdiction." The circuit court ruled that it had jurisdiction over Wilson and that Wilson could have raised the issue on direct appeal or at trial and did not. Nonetheless, Wilson's nolo contendere plea to sexual indecency with a child was not a second conviction for the same offense. Wilson's plea occurred after he had filed a motion for a new trial. He then entered his plea to avoid being tried for the greater offense of second-degree sexual assault. By virtue of his plea, he stands convicted of only a single count of sexual misconduct with a child, and he is serving a six-year sentence for only that offense.

         Wilson claims that convicting a person for a crime with which he was never charged is a clear violation of the right to due process. Hagen, supra (citing general rule but holding that appellant was, in fact, given adequate notice under the state and federal constitutions). In Wilson v. State, 251 Ark. 900, 475 S.W.2d 543 (1972), the Arkansas Supreme Court held that a defendant seeking postconviction relief may not attack the validity of a guilty plea by arguing that ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.