Hoyle v. State

2011 Ark. 321

388 S.W.3d 901

Eric Keith HOYLE, Appellant

v.STATE of Arkansas, Appellee.

No. CR 09–445.

Supreme Court of Arkansas.

Sept. 8, 2011.

PER CURIAM.

Following his conviction on two counts of manslaughter and one count of first-degree battery, appellant Eric Keith Hoyle sought relief under Arkansas Rule of Criminal Procedure 37.1 (2011). The trial court denied his Rule 37.1 petition, and appellant has lodged an appeal in this court. Because the denial of postconviction relief was not clear error, we affirm.

After a jury trial, appellant received sentences of 120 months' imprisonment on each of the manslaughter counts and 240 months' imprisonment on the battery charge, for an aggregate term of 480 months' imprisonment. This court affirmed the judgment. Hoyle v. State, 371 Ark. 495, 268 S.W.3d 313 (2007). Appellant, represented by counsel, filed the Rule 37.1 petition at issue, in which he alleged ineffective assistance of counsel. Appellant based his allegation of ineffective assistance on trial counsel's omissions in failing to object to the amendment of the information, communicate a plea offer, challenge certain hearsay testimony, file a motion for a reduction in sentence, and object to testimony during sentencing about a previous arrest.

After a hearing on the petition, the trial court provided a written order that set forth findings of fact and conclusions of law and that found that counsel was not ineffective on any of the alleged bases. On appeal, appellant reorders his claims and advances five points for reversal, alleging that the trial court erred in finding that trial counsel was not ineffective, as follows: (1) counsel was ineffective in representing appellant in plea negotiations; (2) counsel was ineffective in failing to object to hearsay testimony; (3) counsel was ineffective in failing to object to amendment of the information; (4) counsel was ineffective in failing to object to evidence of prior bad acts; (5) counsel was ineffective in failing to move for reduction of the sentences recommended by the jury.

This court does not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous. Payton v. State, 2011 Ark. 217, 2011 WL 1805340 (per curiam). 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.

In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Anderson v. State, 2010 Ark. 404, 373 S.W.3d 876 (per curiam). Our standard of review requires that we assess the effectiveness of counsel under the two-prong standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Croy v. State, 2011 Ark. 284, 383 S.W.3d 367 (per curiam).

Under the Strickland test, a petitioner raising a claim of ineffective assistance must first 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. A defendant making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness. Miller v. State, 2011 Ark. 114, 2011 WL 913206per curiam).

In order to meet the second prong of the test, the petitioner must show that counsel's deficient performance prejudiced petitioner's defense to such an extent that he was deprived of a fair trial. Carter v. State, 2011 Ark. 226, 2011 WL 1896765 (per curiam). A claimant must show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Mingboupha v. State, 2011 Ark. 219, 2011 WL 1805339 (per curiam). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.

In his first point, appellant contends that trial counsel erred in failing to properly negotiate with the prosecution over a plea offer. He asserts that counsel should have gone back to the prosecution and offered to accept a withdrawn plea offer, because his client only later understood the consequences of rejecting the offered plea.

The prosecution had extended an offer to recommend two consecutive ten-year terms on the manslaughter charges and six years' suspended imposition of sentence on a second-degree-battery charge. If the offer was not accepted, the information would be amended to reflect a first-degree-battery charge rather than the second-degree charge originally filed. The prosecution confirmed that offer in a letter dated January 18, 2006, that referenced having conveyed the offer during a previous November 20, 2005 hearing. That letter was introduced as evidence at the Rule 37.1 hearing. The letter provided a final deadline for appellant to accept the offer, after which the amended information that had been discussed would be filed. The trial record shows that the amended information was filed on January 23, 2006.

On January 26, 2006, there was some discussion of the plea offer and its rejection on the record. The prosecution recapped what had transpired, explained in some detail the potential sentence under the now-amended information, and indicated that the plea offer had been rejected and withdrawn. The court asked appellant directly if he understood what the prosecution had stated and indicated that Mr. Hoyle had nodded in the affirmative.

At the Rule 37.1 hearing, trial counsel testified that he had no specific recollection of plea-offer discussions with appellant or of going over the potential sentence under the amended information. Trial counsel testified that he would have conveyed any offer made to appellant; that he had records of a meeting with appellant on February 2, 2006, in which he did go over the specific ramifications of the amended information; and that he may have had other, earlier conversations with him on the issue as well. Following that meeting and further discussions with his client, counsel sent a letter dated February 7, 2006, that conveyed a counteroffer. The letter that was admitted into evidence referenced the victim's family's insistence that appellant do jail time and conveyed an offer to plead to an aggregate term of three years to two counts of manslaughter and one count of second-degree battery.

Appellant asserts that he did not understand that the potential sentence under the amended information was an aggregate forty years' imprisonment until the January 26, 2006 hearing and that he had wished to accept the plea offer once he understood. He testified at the hearing on the Rule 37.1 petition that he then advised counsel that he wished to take the offer, but that he was told that it was too late to take the offer.

Appellant urges that counsel may be found ineffective for failing to properly represent a defendant regarding plea negotiations, citing to Wanatee v. Ault, 259 F.3d 700 (8th Cir.2001), for its interpretationof Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (holding that the state court's determination that a petitioner was not prejudiced by claimed ineffectiveness of counsel during the plea bargaining stage, because he ultimately received a fair trial was an unreasonable application of clearly established federal law). The State counters by asserting that Hill held only that a defendant may be prejudiced by his acceptance of a plea through counsel error. The State posits that a defendant who rejects a plea offer cannot be prejudiced if he then receives a fair trial. Whether or not appellant can demonstrate prejudice, the trial court did not clearly err in determining that appellant failed to factually support his claim that there was attorney error in dealing with the plea negotiations.

In its order denying postconviction relief, the trial court found that appellant's claims on this issue were not supported by the evidence and testimony. The court further found that counsel had conveyed all plea offers to appellant, that appellant had rejected the plea offer, and that appellant had never instructed counsel that he would take the plea offered by the State.¹ A petitioner carries the burden of supporting his allegations with credible evidence during a hearing on a Rule 37.1 petition. See Rackley v. State, 2010 Ark. 469, 2010 WL 4922390 (per curiam). Judicial review of a defense counsel's performance must be highly deferential, and a strong presumption exists that counsel's conduct falls within a wide range of reasonable professional assistance. Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918. The record supports the court's findings, and the court was not clearly erroneous in determining that appellant failed to carry his burden of proof on this issue.

The trier of fact is free to believe all or part of any witness's testimony and may resolve all questions of conflicting testimony and inconsistent evidence. Carter v. State, 2010 Ark. 231, 364 S.W.3d 46 (per curiam). The trial court's findings of fact make clear that counsel's testimony was more credible and that the court did not accept appellant's account or his testimony that he would have accepted the plea offer if it had been better explained to him. This court does not assess the credibility of the witnesses. Loggins v. State, 2010 Ark. 414, 372 S.W.3d 785;Lacy v. State, 2010 Ark. 388, 377 S.W.3d 227;Fernandez v. State, 2010 Ark. 148, 362 S.W.3d 905. Conflicts in testimony are for the fact-finder to resolve, and the judge is not required to believe the testimony of any witness, especially that of the accused, since he or she is the person most interested in the outcome of the proceedings. Mitchem v. State, 2011 Ark. 148, 2011 WL 1319579 (per curiam). Without credible testimony to support his claims, appellant failed to...