Johninson v. State

Stacy JOHNINSON v. STATE of Arkansas

CR 97-660                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 30, 1997


1.   Criminal procedure -- timeliness of motion to withdraw guilty
     plea -- when made pursuant to Ark. R. Crim. P. 37. -- If a
     sentence has been entered and placed in execution prior to the
     filing of a motion to withdraw the guilty plea upon which it
     was based, the motion must be treated as having been made
     pursuant to Ark. R. Crim. P. 37, and the provisions of that
     rule govern timeliness of the motion.

2.   Criminal procedure -- withdrawal of guilty plea --
     applicability of Rule 26.1 (b). -- Rule 26.1(b) of the
     Arkansas Rules of Criminal Procedure provides for withdrawal
     of a guilty plea after entry of judgment upon the plea;
     however, the motion is timely if there has been "due
     diligence," and allowance is made for consideration of "the
     nature of the allegations of the motion." 

3.   Criminal procedure -- when Ark. R. Crim. P. 37 applicable --
     rule applies prior to entry of judgment. -- The remedy
     provided by Rule 37 of the Arkansas Rules of Criminal
     Procedure is confined to use by a prisoner who is in custody
     under sentence of a circuit court; while relief pursuant to
     Rule 37.1 is limited to prisoners incarcerated under sentence,
     that obviously is not contemplated by Rule 37.2 which, by its
     terms, applies prior to entry of the judgment; Rule 37.2(c)
     provides that if a conviction is obtained on a plea of guilty,
     a petition claiming relief must be filed within ninety days of
     the date of entry of judgment; if the judgment is not entered
     of record within ten days of the date sentence was pronounced,
     a petition claiming relief must be filed within ninety days of
     the date the sentece was pronounced. 

4.   Criminal procedure -- motion to withdraw guilty plea -- when
     treated pursuant to Rule 37. -- A motion to withdraw a guilty
     plea could be treated pursuant to Rule 37 if there is a ruling
     on the merits of the motion; here, there was such a ruling.

5.   Criminal procedure -- setting aside guilty plea -- history of
     Rule 26. -- Arkansas Rule of Criminal Procedure 26(a) applies
     prior to pronouncement of sentence; once the guilty plea has
     been accepted, and the sentencing has taken place, the trial
     court is without jurisdiction to set aside a plea of guilty,
     unless there was some kind of stay of the sentence; as long as
     the sentence is not under any sort of a stay at the time the
     motion to withdraw the guilty plea is made, the trial court
     lacks jurisdiction to permit its withdrawal.

6.   Criminal procedure -- when sentence placed into execution. --
     A sentence is placed into execution when the court issues a
     commitment order unless the trial court grants appellate bond
     or specifically delays execution upon other valid grounds. 

7.   Criminal procedure -- Standridge holding inconsistent with
     Administrative Order No. 3 -- conflicts with Rule 37.2(c) --
     Standrige holding overruled to extent it conflicts with
     opinion. -- The holding of Standridge v. State, 290 Ark. 150,
     717 S.W.2d 795 (1986), that a judgment of conviction and a
     sentence are "entered" and "placed in execution" upon
     pronouncement in open court was inconsistent with
     Administrative Order No. 3, which describes entry of judgment,
     and Arkansas's rule for civil cases which clearly provides for
     the effectiveness of judgments upon their entry or filing; in
     addition, it conflicted with Rule 37.2(c), which obviously
     contemplates a period of time which, for a variety of reasons,
     may occur between the pronouncement of sentence and entry of
     a judgment and commitment order; to the extent that it
     conflicted with this opinion, Standridge v. State, supra, was
     overruled.

8.   Criminal procedure -- Rule 26.1(a) inapplicable -- trial court
     could consider issue of ineffective assistance of counsel
     because judgment not entered within ten days of pronouncement
     of sentence. -- Where "sentencing" took place on September 16,
     1996, but the judgment and commitment order document was not
     entered until February 4, 1997, and the motion to withdraw the
     guilty pleas was made between those dates, Rule 26.1(a) was
     obviously not applicable because the motion was not made
     before pronouncement of the sentence; therefore, subsection
     (b) and Rule 37 were applicable; Rule 37.2(c) settled the
     timeliness issue, and it permitted the trial court to consider
     the issue of ineffective assistance of counsel on its merits
     because the judgment was not entered within ten days of the
     pronouncement of the sentence.

9.   Criminal procedure -- trial court's denial of postconviction
     relief -- when reversed. -- The supreme court will not reverse
     a trial court's denial of postconviction relief unless the
     ruling was clearly erroneous. 

10.  Attorney & client -- claim of ineffective assistance of
     counsel -- two-part standard for evaluating. -- The two-part
     standard for evaluating claims of ineffective assistance of
     counsel -- requiring that the defendant show that counsel's
     representation fell below an objective standard of
     reasonableness and that there be a reasonable probability
     that, but for counsel's unprofessional errors, the result of
     the proceeding would have been different -- applies to guilty
     plea challenges based on ineffective assistance of counsel; to
     satisfy the second requirement, the defendant must show that
     there is a reasonable probability that, but for counsel's
     error, he would not have pleaded guilty and would have
     insisted on going to trial; it is the defendant's burden to
     prove ineffective assistance of counsel, and it is a heavy
     burden because counsel is presumed effective. 

11.  Criminal procedure -- defendant receives greater sentence than
     expected -- not grounds for withdrawing plea. -- A defendant
     who receives a greater sentence than expected is not entitled
     to have his plea withdrawn solely on that basis; in the
     absence of a plea agreement or other extenuating
     circumstances, the fact that a defendant hoped for, or even
     expected, a lighter sentence is not grounds for withdrawing
     the plea after an unfavorable sentence is pronounced.

12.  Witnesses -- credibility to judge to determine. -- The judge
     is not required to believe any witness's testimony.  

13.  Attorney & client -- trial court given deference with respect
     to evaluation of witnesses -- decision that appellant's
     counsel was not ineffective not clearly erroneous. -- Where
     there was a clear record showing that appellant was advised of
     the sentences he might receive for the offenses to which he
     pleaded guilty and his statements that he understood that
     advice; and where the trial court could also have reasonably
     disbelieved the testimony of appellant's mother and sister;
     the supreme court, given its deference to the trial court's
     position with respect to evaluation of the testimony of
     witnesses, could not conclude that the decision that
     appellant's counsel was not ineffective was clearly erroneous
     or clearly against the preponderance of the evidence.
     

     Appeal from Pulaski Circuit Court; Chris Piazza, Judge;
affirmed.
     William M. Brown, for appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger and C. Joseph
Cordi, Jr., Asst. Att'ys Gen., for appellee.

     David Newbern, Justice.
     Stacy Johninson pleaded guilty before Judge David Bogard to a
number of felonies.  The issues in this case are whether a motion
to withdraw the guilty pleas was untimely and, if not, whether the
motion was properly denied.  We hold the motion was not untimely
but that it was lacking in merit.  We affirm as no error occurred
in the denial of the motion to withdraw the pleas.
     On September 16, 1996, Judge Bogard sentenced Mr. Johninson to
imprisonment for forty years for aggravated robbery, ten years for
theft by receiving, five years for being a felon in possession of
a firearm, and five years due to revocation of probation of a
previous sentence.  Those sentences were pronounced in open court
to be served consecutively for a total of sixty years'
imprisonment.  An additional five-year sentence for being a felon
in possession of a firearm was pronounced to be served concurrently
with the other sentences.
     After pronouncing the sentence, Judge Bogard recused and
transferred the case to a separate division of the Pulaski Circuit
Court presided over by Judge Chris Piazza.  On November 22, 1996,
Mr. Johninson moved to withdraw his guilty pleas on the ground that
his counsel had told him he would receive only a combined ten-year
sentence for all of the offenses.  The only request made of Judge
Piazza was that Mr. Johninson be allowed to withdraw the pleas due
to the ineffectiveness of his counsel.  Mr. Johninson contended
that, although he was guilty of the offenses, other than aggravated
robbery, to which he had pleaded guilty, he would not have entered
the pleas but for his counsel's promise of a ten-year sentence.
     On December 5, 1996, Judge Piazza held a hearing on the
motion.  Testimony was taken from Mr. Johninson, his mother, and
his sister, all of whom said the promise of ten years had been made
by Mr. Johninson's lawyer.  After reviewing the record of the
proceedings before Judge Bogard and the thorough inquiry made of
Mr. Johninson by Judge Bogard with respect to whether he had been
promised anything in return for his plea and whether he was
pleading guilty because he was indeed guilty and knew the maximum
sentences he might receive, Judge Piazza announced that he would
follow the sentences imposed by Judge Bogard.  The judgment and
commitment order document, signed by Judge Piazza, was filed of
record February 4, 1997.

                         1. Timeliness 
     The State argues that we must dismiss the appeal because the
Trial Court lacked jurisdiction to permit withdrawal of the guilty
pleas at the time the attempt to withdraw them occurred and,
therefore, this Court lacks jurisdiction of the appeal.  Two
subsections of Ark. R. Crim. P. 26.1 are significant in this
instance.

          (a) Prior to pronouncement of sentence, the court shall
     allow a defendant to withdraw his plea of guilty or nolo
     contendere upon a timely motion and proof to the satisfaction
     of the court that withdrawal is necessary to correct a
     manifest injustice.
          (b) A motion to withdraw a plea of guilty or nolo
     contendere to correct a manifest injustice is timely if, upon
     consideration of the nature of the allegations of the motion,
     the court determines that it is made with due diligence.  Such
     motion is not barred because it is made after the entry of
     judgment upon the plea.  If the defendant is allowed to
     withdraw his plea after judgment has been entered, the court
     shall set aside the judgment and the plea.
                               ***
     
     If a sentence has been entered and placed in execution prior
to the filing of a motion to withdraw the guilty plea upon which it
was based, the motion must be treated as having been made pursuant
to Ark. R. Crim. P. 37, and the provisions of that rule govern
timeliness of the motion.  Shipman v. State, 261 Ark. 559, 550 S.W.2d 454 (1977).  See also Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985); Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979).
     Rule 26.1(b) provides for withdrawal of a guilty plea after
entry of judgment upon the plea, but it is not limited to that
situation.  The previous sentence says the motion is timely if
there has been "due diligence," and allowance is made for
consideration of "the nature of the allegations of the motion." 
The question thus becomes whether a motion to withdraw a guilty
plea that was not made prior to pronouncement of sentence or after
entry of the judgment may be timely.  If withdrawal motions, other
than those made prior to pronouncement of sentence, are to be
considered under Rule 37 and its provisions on timeliness, the
answer is found in Rule 37.2(c) which provides:

          (c) If a conviction was obtained on a plea of guilty, or
     the petitioner was found guilty at trial and did not appeal
     the judgment of conviction, a petition claiming relief under
     this rule must be filed in the appropriate circuit court
     within ninety (90) days of the date of entry of judgment.  If
     the judgment was not entered of record within ten (10) days of
     the date sentence was pronounced, a petition under this rule
     must be filed within ninety (90) days of the date sentence was
     pronounced.
                               ***
(Emphasis supplied.)

     In this case, the judgment and conviction order document was
not entered until February 4, 1997, and the motion to withdraw the
guilty plea was made within ninety days of the pronouncement of
sentence.
     We are, of course, aware that subsections (a) and (b) of Rule
26.1 may be read as inconsistent with each other.  The opinion in
the Shipman case seemed to be an attempt to reconcile them.  We are
also aware of the history of the rule subsequent to the Shipman
decision.  
     In Malone v. State, 294 Ark. 376, 724 S.W.2d 945 (1988), we
noted that there was nothing in the record to show that the parties
seeking to withdraw guilty pleas had moved to do so prior to
"sentencing" as required by Rule 26.1.  We acknowledged, however,
that Rule 37 could have applied but did not because that remedy is
confined to use by a prisoner who is in custody under sentence of
a circuit court, and the parties at issue were out on bond.  Rule
37.2(c)  and the provision with respect to the period from ten days
after pronouncement of sentence and the entry of the judgment and
commitment order document were not at issue and not discussed. 
While relief pursuant to Rule 37.1 is limited to prisoners
incarcerated under sentence, that obviously is not contemplated by
Rule 37.2 which, by its terms, applies prior to entry of the
judgment. 
     In Brown v. State, 290 Ark. 289, 718 S.W.2d 937 (1986), we
again acknowledged that a motion to withdraw a guilty plea could be
treated pursuant to Rule 37 if there is a ruling on the merits of
the motion.  In the case now before us, there was such a ruling.
     In Scalco v. City of Russellville, 318 Ark. 65, 883 S.W.2d 813
(1994), we discussed the history of Rule 26.  We recited subsection
(a) and emphasized the words "prior to pronouncement of sentence." 
We wrote, "once the guilty plea has been accepted, and the
sentencing [apparently referring to pronouncement] has taken place,
the trial court is without jurisdiction to set aside a plea of
guilty, unless there was some kind of stay of the sentence."  318
Ark. at 70, 883 S.W.2d  at 815.  In the Scalco case, the sentence
had been, in effect, "stayed" during an appeal of a suppression-of-
evidence issue pursuant to Ark. R. Crim. P. 24.3 but had ultimately
been affirmed by the Court of Appeals.  We held that, as the
sentence was not under any sort of a stay at the time the motion to
withdraw the guilty plea was made, the Trial Court lacked
jurisdiction to permit its withdrawal.
     In McCuen v. State, 328 Ark. 46, 941 S.W.2d 397 (1997), a
motion to withdraw a guilty plea was treated as a Rule 37 petition
in the Trial Court.  The contention was that Mr. McCuen's counsel
had been ineffective in seeking withdrawal of his guilty plea.  We
ruled on the merits of the argument and held there was no right to
counsel in a postconviction proceeding.  In that case, the motion
had been made after entry of the judgment and commitment order
document.           
     In Standridge v. State, 290 Ark. 150, 717 S.W.2d 795 (1986),
the issue was whether a defendant, the imposition of whose sentence
had been delayed for five years and who had been placed on
probation for one year, could have probation revoked for an act
which occurred prior to entry of the judgment.  We held that the
sentence was effective from the time of its pronouncement in open
court.  In Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987),
however, we held that "A sentence is placed into execution when the
court issues a commitment order unless the trial court grants
appellate bond or specifically delays execution upon other valid
grounds."  293 Ark. at 413, 738 S.W.2d  at 411.  The State would
have us overrule that language in favor of the rationale of the
Standridge case.
     We agree with the State that the Standridge opinion cited
persuasive authority for its result and the  Redding case opinion 
was lacking in cited authority.  We decline, however, to follow the
Standridge opinion here.  The Standridge holding that a judgment of
conviction and a sentence are "entered" and "placed in execution"
upon pronouncement in open court is inconsistent with our
Admistrative Order No. 3, which describes entry of judgment, and
our rule for civil cases which clearly provides for the
effectiveness of judgments upon their entry or filing.   Ark. R.
Civ. P. 58; Standridge v. Standridge, 298 Ark. 494, 796 S.W.2d 12
(1989).  In addition, it conflicts with Rule 37.2(c) quoted above. 
The latter rule obviously contemplates a period of time which, for
a variety of reasons, may occur between the pronouncement of
sentence and entry of a judgment and commitment order.  To the
extent it conflicts with this opinion, Standridge v. State, supra,
is overruled.
     In the case now before us, the "sentencing" took place on
September 16, 1996, but the judgment and commitment order document
was not entered until February 4, 1997.  The motion to withdraw the
guilty pleas was made between those dates.  As Rule 26.1(a) is
obviously not applicable because the motion was not made prior to
pronouncement of the sentence, we are relegated to subsection (b)
and Rule 37.  Again, Rule 37.2(c) settles the timeliness issue, and
it permitted the Trial Court to consider the issue of ineffective
assistance of counsel on its merits because the judgment was not
entered within ten days of the pronouncement of the sentence.

              2. Ineffective assistance of counsel
     "We will not reverse a trial court's denial of postconviction
relief unless the ruling was clearly erroneous."  Rowe v. State,
318 Ark. 25, 26-27, 883 S.W.2d 804, 805, citing Thompson v. State,
307 Ark. 492, 821 S.W.2d 37 (1991).  Mr. Johninson claims he is
entitled to withdraw his guilty plea on account of ineffective
assistance of counsel.

     In Hill v. Lockhart, 474 U.S. 52 (1985), [it was held
     that] the two-part standard adopted in Strickland v.
     Washington, 466 U.S. 668 (1984), for evaluating claims of
     ineffective assistance of counsel -- requiring that the
     defendant show that counsel's representation fell below
     an objective standard of reasonableness, and that there
     is a reasonable probability that, but for counsel's
     unprofessional errors, the result of the proceeding would
     have been different -- applies to guilty plea challenges
     based on ineffective assistance of counsel.  In order to
     satisfy the second requirement, the defendant must show
     that there is a reasonable probability that, but for
     counsel's error, he would not have pleaded guilty and
     would have insisted on going to trial.  It is the
     defendant's burden to prove ineffective assistance of
     counsel, and it is a heavy burden because counsel is
     presumed effective.  Hicks v. State, 289 Ark. 83, 709 S.W.2d 87 (1986).

Duncan v. State, 304 Ark. 311, 316, 802 S.W.2d 917, 919-20
(1991)(emphasis added).  See Cranford v. State, 303 Ark. 393, 797 S.W.2d 442 (1990).  See also Thompson v. State, 307 Ark. 492, 494,
821 S.W.2d 37, 38 (1991). ("We have recognized that a defendant
whose conviction is based on a plea of guilty will have difficulty
in proving prejudice under the Strickland standard since his plea
rests on his admission in court that he did the act with which he
is charged."), citing Huff v. State, 289 Ark. 404, 711 S.W.2d 801
(1986); Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984).  
     In Stobaugh v. State, 298 Ark. 577, 769 S.W.2d 26 (1989), the
defendant sought to withdraw his plea on the basis of his claim
that his attorney provided ineffective assistance.  The attorney's
assistance was alleged to be ineffective on several grounds, one of
which was that the attorney had misled the defendant by giving him
the impression that he would receive a suspended or probated
sentence if he pleaded guilty.  The defendant received a sentence
of four years and a fine of $10,000.  We rejected the argument as
follows:

     A defendant who receives a greater sentence than expected
     is not entitled to have his plea withdrawn solely on that
     basis.  In the absence of a plea agreement or other
     extenuating circumstances, the fact that a defendant
     hoped for, or even expected, a lighter sentence is not
     grounds for withdrawing the plea after an unfavorable
     sentence is pronounced.
Id. at 580, 769 S.W.2d  at 28. 
     Despite the clear record showing that Mr. Johninson was
advised of the sentences he might receive for the offenses to which
he pleaded guilty and his statements that he understood that
advice, he maintains that his attorney's advice was "invalid"
because he ultimately received a sentence in excess of ten years. 
"The judge is not required to believe any witness's testimony." 
McDaniel v. State, 291 Ark. 596, 599, 726 S.W.2d 679, 681 (1987). 
     The Trial Court could also have reasonably disbelieved the
testimony of Mr. Johninson's mother and sister.  The prosecutor
succeeded in showing some problems with their credibility.  Even
counsel for Mr. Johninson stated that the mother's testimony
concerning the attorney's alleged promise of a ten-year sentence
had changed since the meeting counsel had with her prior to the
hearing before Judge Piazza.       
     Given our deference to the Trial Court's position with respect
to evaluation of the testimony of witnesses, we cannot conclude
that its decision that Mr. Johninson's counsel was not ineffective
was clearly erroneous or clearly against the preponderance of the
evidence.
     Affirmed.