Gonder v. State, 2011 Ark. 248

Appellant Duane J. Gonder pleaded guilty to first-degree murder, aggravated assault, and furnishing prohibited articles after a plea agreement reduced capital murder and dropped kidnapping and burglary; cumulative sentence 552 months.
The trial court denied a § 16-90-111 petition alleging his mother’s financial burden and ineffective assistance because the victim allegedly was armed; court treated as a leniency argument and as Rule 87.1 issue, respectively.
Gonder filed a Rule 37.1 petition asserting ineffective assistance for counsel’s failure to reveal the victim’s weapon; the trial court denied, deeming plea terms unalterable and asserting no prejudice.
The appeals were consolidated; Gonder sought counsel appointment, but the court dismissed the appeals as wholly nonmeritorious and moot.
This court held that a petition seeking Rule 37.1 relief governs regardless of labeling; a guilty-plea defendant must show that counsel’s deficiencies affected the voluntary and intelligent nature of the plea or prejudiced the defense.
The court concluded there was no reversible error: breaching the plea by seeking a lower sentence would breach the contract, and the failure to present the weapon evidence did not prejudice the plea, so no relief was warranted.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the petition was properly treated under Rule 37.1	Gonder argued for postconviction relief under Rule 37.1.	Court treated as improper labeling and allowed only Rule 37.1 topics; dismissal proper.	Petition governed by Rule 37.1; relief denied.
Whether counsel's alleged failure to reveal the victim's weapon prejudiced the plea	Had counsel disclosed the weapon, plea would be less severe or avoided.	Plea terms were bargained; no prejudice shown for guilty plea.	No prejudice; ineffective-assistance claim fails.
Whether seeking a lower sentence breached the plea agreement	Should have allowed sentencing reduction if evidence supported it.	A later request to alter terms would breach the agreement and risk harsher outcome at trial.	Breach would be the remedy; cannot obtain lower sentence after contract.
Whether the appeal from the postconviction orders could proceed	Appellant should be allowed to appeal	Appeal dismissed as futile and moot; no merit.	Appeal dismissed; counsel appointment moot.

Goldsmith v. State, 2010 Ark. 158 (2010) (per curiam affirmance of postconviction denial)
Watkins v. State, 2010 Ark. 156 (2010) (per curiam postconviction relief procedures)
Meraz v. State, 2010 Ark. 121 (2010) (per curiam postconviction relief standards)
Smith v. State, 367 Ark. 611 (2006) (per curiam postconviction review)
Jamett v. State, 2010 Ark. 28 (2010) (ineffective-assistance standard and plea-bargain consequences)
Harrison v. State, 371 Ark. 474 (2007) (Strickland standard applied to ineffective assistance)
Buchheit v. State, 339 Ark. 481 (1999) (prejudice standard for guilty-plea ineffective assistance)
Hill v. Lockhart, 474 U.S. 52 (1985) (prejudice standard for guilty pleas under Strickland)
Pettit v. State, 296 Ark. 423 (1988) (executive clemency versus postconviction relief)
Musgrove v. State, 2010 Ark. 458 (2010) (Rule 37.1 petition governs postconviction relief regardless of label)
Carter v. State, 2010 Ark. 349 (2010) (recognizes jurisdictional treatment of postconviction petitions)
Jackson v. State, 2010 Ark. 157 (2010) (per curiam discussion of postconviction relief)
Omar v. State, 2011 Ark. 55 (2011) (procedural bar on successive Rule 37 petitions)
Davenport v. State, 2011 Ark. 105 (2011) (denial of Rule 37.3 without written findings affirmed)
Reed v. State, 375 Ark. 277 (2008) (foundational postconviction findings standard)