11 Appellant Duane J. Gonder was charged with capital murder, aggravated assault, aggravated residential burglary, kidnapping, and furnishing prohibited articles. Pursuant to a plea agreement, the capital-murder charge was reduced to first-degree murder; the kidnapping and burglary charges were dropped; and appellant pleaded guilty in Drew County Circuit Court to one charge each of first-degree murder, aggravated assault, and furnishing prohibited articles. He was sentenced to a cumulative term of 552 months’ imprisonment in the Arkansas Department of Correction.
Appellant first petitioned the trial court for a sentence reduction under Arkansas Code Annotated § 16-90-111 (Repl.2006) on the grounds that (1) appellant’s sentence placed an extreme burden on his family-because his mother relied on both appellant and appellant’s brother (the murder victim) for support and that (2) appellant’s attorney had failed to inform |2the court prior to sentencing that the victim was also armed, which would have helped appellant obtain a more lenient sentence. The trial court denied relief on this petition in a written order on October 4, 2010, holding that the request for sentence reduction based on appellant’s mother’s financial burden was, in effect, a request for leniency, which is an argument for executive clemency, not an issue for the trial court. Further, the trial court held that appellant’s argument regarding ineffective assistance must be brought under Arkansas Rule of Criminal Procedure 87.1 (2011), not under a petition for sentence reduction.
Appellant’s subsequent Rule 37.1 petition for postconviction relief reiterated the claim that his attorney had been ineffective for failing to introduce that the victim also had a gun. Appellant further asserted that, had his attorney been willing to introduce the victim’s weapon at trial, appellant would not have pleaded guilty, but would have proceeded to trial. Therefore, appellant asked for his sentence to be nullified, for the court to grant him an eviden-tiary hearing, and for a new trial. The trial court denied this petition in a written order dated November 23, 2010, finding that it was “illogical” to argue that counsel should have presented mitigating evidence when appellant was receiving exactly what he had bargained for with the state, i.e. dropped charges and reduced charges in exchange for a specific term of years.
Appellant timely filed notices of appeal from both the October 4, 2010 order and the November 23, 2010 order, and those appeals were consolidated in this court. Now before us is appellant’s pro se motion for appointment of counsel. We need not address the merits of ^appellant’s motion because it is clear from the record that appellant could not prevail if his appeal were permitted to go forward. Accordingly, the appeal is dismissed and the motion for appointment of counsel is moot. An appeal from an order that denied a petition for postconviction relief will not be permitted to proceed where it is clear that the appellant could not prevail. Goldsmith v. State,
This court does not reverse a denial of postconviction relief unless the trial court’s findings are clearly erroneous. Jamett v. State,
As a threshold matter, we note that, while the trial court treated appellant’s first petition as a request for relief under Arkansas Code Annotated § 16-90-111, we have held |4that a petition that seeks postconviction relief cognizable under Rule of Criminal Procedure 37.1 is governed by that rule, regardless of the label placed on it by a petitioner. See Musgrove v. State,
Under the two-pronged Strickland test, a petitioner making 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 U.S. Constitution. Harrison v. State,
As to the second prong of the test, the petitioner must show that counsel’s deficient | ¡^performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Jamett,
Appellant argued that his trial counsel was ineffective because the murder victim was armed with a gun, and, according to appellant, had trial counsel informed the trial court of this fact during appellant’s guilty plea, appellant would have received a lesser sentence than the one called for in the plea agreement. However, as we explained in Jamett, this argument is unavailing because, when a defendant enters a plea of guilty in exchange for a specified term of incarceration, “the sentence imposed [is] part and parcel of the plea agreement itself.”
Under the terms of the plea agreement signed by appellant, if appellant pleaded guilty to the amended charges, “the State [would] recommend” a 552-month sentence and $855 in fines, fees, and costs.” We apply general contract principles in interpreting plea agreements. Jamett,
Further, as we have already stated, to establish prejudice and prove that he was deprived of a fair trial due to ineffective assistance of counsel, an appellant who has pleaded guilty must demonstrate a reasonable probability that, but for counsel’s errors, petitioner would not have so pleaded and would have insisted on going to trial. Buchheit,
We note that the trial court’s order did not enter findings of fact or law as required by Rule 37.3. However, this court has affirmed the denial of a |7Rule 37.1 petition notwithstanding the circuit judge’s failure to make written findings under Rule 37.3 where it can be determined from the record that the petition is wholly without merit or where the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted. See Davenport v. State,
As noted, after the trial court denied relief on appellant’s first petition, appellant filed a petition for postconviction relief under Rule 87.1, asserting the same ineffective assistance of counsel argument that he had included in his first petition, which the trial court denied as meritless in its November 28, 2010 order. However, Rule 37.2(b) provides that all grounds for relief available to a petitioner under the rule must be raised in his or her original petition unless the original petition was denied without prejudice to filing a second petition. As the first petition filed by appellant was a petition for postconviction relief under Rule 37.1, | ^regardless of the label he placed on it, he was barred from submitting a subsequent petition under that Rule, and his subsequent petition was subject to dismissal on that basis. See Omar v. State,
Inasmuch as appellant could not prevail on his appeal of either of the trial court’s orders that denied postconviction relief, we dismiss the appeal. Appellant’s motion for appointment of counsel is moot.
Appeal dismissed; motion moot.
Notes
. We need not consider appellant’s argument for a reduced sentence based on the hardship to his family caused by his current sentence. Such an argument is, as the trial court noted, a request for leniency, which is an issue for executive clemency rather than a basis for postconviction relief. See Williams v. State,