Myers v. State, 2012 Ark. 143

Appellants Myers and Hall were charged with manufacturing methamphetamine, possession of drug paraphernalia with intent to manufacture, and possession of drug paraphernalia; Myers also as a habitual offender.
Amended informations added possession of methamphetamine with intent to manufacture for both; trial began with the State clarifying intent to deliver and a typo regarding manufacture.
At trial, the court corrected Hall’s information to possession with intent to deliver; the State later moved to reduce Myers’ charge to simple possession.
Jury convicted both on manufacturing methamphetamine and paraphernalia offenses; Myers also convicted of possession of methamphetamine and Hall of possession with intent to deliver.
Postconviction Rule 37 petitions claimed ineffective assistance for multiple arguments, including failure to object to certain charges and to the seventy-percent parole provision; petitions were denied, and appellants appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is paraphernalia with intent to manufacture a lesser-included offense?	Myers/Hall: paraphernalia with intent to manufacture is lesser-included of manufacturing.	Gunter: Hester holds it is not a lesser-included offense.	Not a lesser-included offense; no ineffective assistance.
Is possession with intent to deliver a lesser-included offense of manufacturing?	Hall: it is a lesser-included offense, yielding double jeopardy.	State: not a lesser-included offense per Cothren.	Not a lesser-included offense; no ineffective assistance.
Was trial counsel ineffective for not objecting to possession with intent to deliver charged when not all appellants were charged with it originally?	Petitioners claim improper charging misalignment; error affects fairness.	State: charges were clarified/amended; no prejudice.	No ineffective assistance; amended pleadings satisfied charging.
Did trial counsel’s handling of the seventy-percent parole provision render relief under Strickland?	Act 1782/70% rule unconstitutional; parole instruction prejudiced trial.	State: parole status immaterial to guilt; advocacy relied on the rule; no prejudice.	No prejudice; denial of Rule 37 affirmed.

Hester v. State, 362 Ark. 373 (2005) (paraphernalia with intent to manufacture not a lesser-included offense of manufacturing)
Cothren v. State, 344 Ark. 697 (2001) (possession with intent to deliver not a lesser-included offense of manufacturing)
Wilcox v. State, 342 Ark. 388 (2000) (double jeopardy and multiple punishment protections in Arkansas)
Blockburger v. United States, 284 U.S. 299 (1932) (same-elements test for determining multiple offenses)