FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-15-14]
HONORABLE MARCIA R. HEARNSBERGER, JUDGE
Daniel Ron Wilson, pro se appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
J. GLADWIN, Judge.
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.
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
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.
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.
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."
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.
Standard of Review and Applicable Law
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.
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.
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).
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
Arguments Not Preserved
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.
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).
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).
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.
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 ...