TRAMMELL MOORE v. STATE OF ARKANSAS
No. CR-13-1003
SUPREME COURT OF ARKANSAS
May 15, 2014
2014 Ark. 231
HONORABLE JODI RAINES DENNIS, JUDGE
PRO SE APPELLANT‘S MOTION FOR EXTENSION OF BRIEF TIME, [JEFFERSON COUNTY CIRCUIT COURT, NO. 35CR-12-23]
PER CURIAM
On Aрril 11, 2013, judgment was entered in the Jefferson County Circuit Court reflecting that appellant Trammell Moore had entered a plea of guilty to murder in the first degreе, committing a terroristic act, battery in the first degree, and two counts of battery in the second degree. An aggregate sentence of 348 months’ imprisonment was imposed.
On June 27, 2013, appellant filed in the trial court a pro se petition for reduction of sentence pursuant to
The trial court denied the petition, and appellant lodged an appeal here from the order. Appellant now asks for an extension of time to file his brief. As it is clear from the record thаt appellant could not prevail on appeal, the appeal is dismissed, and the motion is moot. An
Appellant did not contend that the sentence imposed on him was illegal. He merely sought to have the sentence reduced. While the statute provides that a petition for reduction of sentence is timely if filed within ninety days of the date the judgment was entered of record, we have held that a trial court is constrained in its ability to grant relief under the statute because a trial court is without jurisdiction to modify, amend, or revise a valid sentence once it has been put into execution. Denson v. State, 2013 Ark. 209; Carter, 2010 Ark. 349. Here, the sentence was put intо execution when the trial court issued the sentencing order on April 11, 2013. See Denson, 2013 Ark. 209.
As the trial court noted in its order, the petition was also without merit if considered as a petition for postconviction relief pursuant to
Here, appellant‘s allegation that his sentence was excessive and his challenge to the plea of guilty were cognizable under Rule 37.1. Our jurisdiction to consider the appeаl as the appeal
This court has held that it will reverse the circuit court‘s decision granting or denying postconviction relief only when that decision is clearly erroneous. Paige v. State, 2013 Ark. 432 (per curiam); Pankau v. State, 2013 Ark. 162. 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. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 494.
First, with respect to appellant‘s allegation that his sentence was excessive, he did not argue that any of the sеntences imposed for his offenses was outside the range of appropriate sentences set by statute. His argument was that the facts giving rise to thе charges demonstrated that he should have been charged with manslaughter. Generally, with few exceptions not applicable to the presеnt case, claims that challenge a guilty plea under Rule 37.1 are limited to those alleging that the plea was not made voluntarily and intelligently or that thе plea was entered without effective assistance of counsel. Dotson v. State, 2013 Ark. 382 (per curiam). By pleading guilty, appellant waived any claim that he was not guilty of the charges. Thacker v. State, 2012 Ark. 205 (per curiam).
To the extent that appellant‘s mention in his petition that “a counsel” should ask for an instruction on voluntary manslaughter could be сonstrued as a claim that he was not afforded effective assistance of counsel, the trial court‘s decision that appellant failed tо demonstrate that his attorney was ineffective was not clearly erroneous. In an appeal from a circuit court‘s denial
Under the two-prong Strickland test, a petitioner raising a claim of ineffective assistance of counsel 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 petitioner making an ineffective-assistance-of-counsel claim must show that counsel‘s performanсe fell below an objective standard of reasonableness. Dansby v. State, 347 Ark. 674, 66 S.W.3d 585 (2002). In doing so, the petitioner must overcome a strong presumption that counsel‘s сonduct falls within the wide range of reasonable professional assistance. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830. The petitioner has the burden of overcoming the presumption by idеntifying specific acts and omissions that, when viewed from counsel‘s perspective at the time of trial, could not have been the result of reasonable professional judgment. Thompson v. State, 2013 Ark. 179 (per curiam).
With respect to the second prong of the test, the petitioner must show that counsel‘s deficient performance so prejudiced petitioner‘s defense that he or she was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, ___ S.W.3d ___. To establish prejudice and prove that he was deprivеd of a fair trial due to ineffective assistance of counsel, a petitioner who has pled guilty must demonstrate a reasonable probability thаt, but for counsel‘s errors, he would not have entered a guilty plea and would have insisted on going to trial. Scott v. State, 2012 Ark. 199, 406 S.W.3d 1.
Unless a petitioner makes both showings, it cannot be sаid that the conviction resulted from a breakdown in the adversarial process rendering the result unreliable. Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. There is no reason for a court deciding an ineffective-assistance-of-counsel claim to address both components of the Strickland standard if the petitioner makes an insufficient showing on one of the prongs. Id. (citing Strickland, 466 U.S. at 697). Here, appellant failed to demonstrate the requisite prejudice that, but for counsel‘s alleged errors, he would not have entered a plea of guilty and would have demanded a trial. Accordingly, he was not entitled to postconviction relief on a claim that counsel was ineffective under Rule 37.1.
Appeal dismissed; motion moot.
Trammell Moore, pro se appellant.
No response.