FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [NO.
60CR-17-29] HONORABLE HERBERT THOMAS WRIGHT, JUDGE
Claiborne Ferguson Law Firm, P.A., by: Claiborne H. Ferguson,
Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't
Att'y Gen., for appellee.
W. GRUBER, CHIEF JUDGE
Terrio Williams was charged in the Pulaski County Circuit
Court with second-degree murder. Appellant entered a
negotiated guilty plea and was sentenced by the court to 300
months' imprisonment. Subsequently, appellant filed a
timely petition for postconviction relief pursuant to
Arkansas Rule of Criminal Procedure 37.1, alleging
ineffective assistance of counsel. The petition was denied
without a hearing, and appellant filed a timely notice of
appeal from the court's order. Appellant argues on appeal
that his guilty plea was not given voluntarily and
intelligently upon the advice of counsel. We affirm.
hearing was held on September 7, 2017. At the hearing, the
court informed appellant that he was being charged with
"murder, class A felony" and that he could receive
up to 30 years' imprisonment and a fine of up to $15,
000. When asked whether he understood the charge and the
possible punishment, appellant responded affirmatively.
Appellant also indicated he had discussed the matter with his
attorney and was satisfied with his attorney's advice.
Appellant stated he understood that he would not get a trial
or the opportunity to appeal if he entered a guilty plea.
Appellant denied being forced, threatened, or promised
anything, as well as being under the influence of drugs or
alcohol. A written plea statement signed by appellant the
same day as the hearing clearly stated that appellant had
been charged with second-degree murder and contained
statements consistent with appellant's testimony at the
petition for postconviction relief, appellant raised nine
allegations of ineffective assistance of counsel: (1) failure
to fully investigate the case; (2) failure to consider the
possibility of an affirmative defense based on extreme
emotional distress; (3) failure to adequately explain the
implications of pleading guilty to second-degree murder and
that appellant was unaware of the crime for which he was
charged; (4) failure to adequately prepare pretrial motions
and request additional time to review newly discovered
evidence; (5) failure to properly advise appellant to unlock
his cell phone; (6) failure to retain an expert witness; (7)
failure to get a second opinion on the facts of the case; (8)
failure to effectively communicate with appellant; and (9)
failure to identify and adequately brief "numerous
order denying the petition for postconviction relief, the
court found that appellant's allegations of ineffective
assistance of counsel were "conclusory at best" and
did not provide the basis for an evidentiary hearing. The
court further acknowledged that the only allegation
cognizable from a guilty plea was the third allegation:
Counsel did not adequately explain the implications of
pleading guilty to second-degree murder under the instant
facts. In fact, Petitioner was wholly unaware of the crime to
which he was pleading guilty. Accordingly, Counsel failed to
ensure that Petitioner was voluntarily and knowledgeably
pleading guilty to the charged offense.
court noted appellant's testimony at the hearing and the
statements made in the written plea statement and found all
the allegations to be without merit.
appeal, we do not reverse the court's denial of
postconviction relief unless the 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,
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. When a defendant pleads guilty, the only claims
cognizable in a proceeding pursuant to Rule 37.1 are those
that allege the plea was not made voluntarily and
intelligently or was entered without effective assistance of
counsel. See Jamett v. State, 2010 Ark. 28, at 3,
358 S.W.3d 874, 876.
appeal from a trial court's denial of postconviction
relief on a claim of ineffective assistance of counsel, the
sole question presented is whether, based on a totality of
the evidence under the standard set forth by the United
States Supreme Court in Strickland v. Washington,
466 U.S. 668 (1984), the trial court clearly erred in holding
that counsel's performance was effective. Small v.
State, 371 Ark. 244, 264 S.W.3d 512 (2007). The test
under Strickland is two-pronged. Scott v.
State, 2012 Ark. 159, at 2 (per curiam). First, a
petitioner making a claim of ineffective assistance must show
that counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the
petitioner by the Sixth Amendment to the United States
Constitution. Id. The petitioner must overcome a
strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance.
Polivka v. State, 2010 Ark. 152, at 8, 362 S.W.3d
918, 924. Second, the petitioner must demonstrate that
counsel's deficient performance prejudiced the defense to
such an extent that the petitioner was deprived of a fair
trial. Jamett, 2010 Ark. 28, at 4, 358 S.W.3d at
876. In addition, conclusory statements that counsel was
ineffective cannot be the bases of postconviction relief.
Mancia v. State, 2015 Ark. 115, at 5, 459 S.W.3d
only ineffective-assistance claim pursued on appeal is that
he did not plead guilty intelligently upon the advice of
competent counsel because his counsel did not advise him that
he could reasonably argue that his actions constituted
manslaughter rather than second-degree murder, to which he
entered a guilty plea. The State counters that
appellant's argument is not preserved for appeal because
it was not raised below.
appellant did argue below that counsel failed to consider the
possibility of an affirmative defense based on extreme
emotional distress, the argument he now raises is different.
An appellant in a Rule 37.1 proceeding is limited to the
scope and nature of his arguments below, and he cannot raise
new arguments on appeal. Bryant v. State, 2013 Ark.