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                    SUPREME COURT OF ARKANSAS.
                                         No.   CR-15-1023


CHARLES ROBINSON                                    Opinion Delivered March   10, 2016
                                  APPELLANT

V.                                           PRO SE MOTIONS FOR
                                             EXTENSION OF TIME TO FILE
STATE OF ARKANSAS                            BRIEF AND FOR TRANSCRIPT
                                    APPELLEE [PULASKI COUNTY CIRCUIT
                                             COURT, NOS. 60CR-11-3885; 60CR-
                                             13-851; 60CR-13-933]

                                                    HONORABLE HERBERT WRIGHT,
                                                    JR., JUDGE

                                                    APPEAL DISMISSED; MOTIONS
                                                    MOOT.


                                         PER CURIAM


        Appellant Charles Robinson filed a pro se petition for postconviction relief pursuant

 to Rule 37.1 of the Arkansas Rules of Criminal Procedure, which was denied by the circuit

 court. Robinson lodged this appeal, and he has filed two motions in which he seeks an

 extension of time to file his brief and also seeks a copy of the trial transcript at public expense.

 Because it is clear that Robinson cannot prevail on appeal, we dismiss the appeal, and

 Robinson’s motions are moot.

        On December 8, 2014, Robinson pleaded guilty to aggravated robbery, theft of

 property obtained by threat of serious physical injury, and possession of firearms by certain

 persons in case number 60CR-11-3885. On the same date, Robinson also pleaded guilty

 to an additional charge of robbery and theft in case number 60CR-13-851 and to possession
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of a controlled substance with intent to deliver in case number 60CR-13-933. The

sentencing orders were entered on January 15, 2015.

       Robinson filed a timely, verified Rule 37 petition on April 13, 2015, alleging that

his convictions were the result of ineffective assistance of his counsel, Kathryn Hudson,

because she failed to inform him that the prosecutor had made a plea offer that

recommended a sentence of 15 years’ imprisonment with 5 years suspended with respect to

the offenses charged in case number 60CR-11-3885. According to Robinson’s Rule 37.1

petition, the aforementioned plea offer was withdrawn by the prosecutor after Robinson

was charged with first-degree murder. The record demonstrates that Robinson was arrested

in 2011 on the charges in case number 60CR-11-3885, but was released on bail. While

Robinson was free on bail, he was charged with the additional offenses reflected in case

numbers 60CR-13-851 and 60CR-13-933. Robinson was also charged with first-degree

murder in case number 60CR-13-780, for which he was convicted on a later date.

      Robinson filed a Rule 37.1 petition that listed the case numbers connected with all

the offenses to which he pleaded guilty on December 8, 2014: 60CR11-3885, 60CR-13-

851, and 60CR-13-933. However, the record reflects that Robinson was represented by

Jessica Duncan in case numbers 60CR-13-851 and 60CR-13-933, and Robinson did not

raise any allegations of deficiency with regard to Duncan’s representation. Robinson’s

request for postconviction relief is based solely on allegations that Hudson’s failure to

communicate a plea offer allegedly made in case number 60CR-11-3885 deprived him of

a constitutional right. Robinson further alleged that he was prejudiced by Hudson’s failure

because, after he pleaded guilty on December 8, 2014, the circuit court sentenced him to

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720 months’ imprisonment 1 for the crimes, rather than the more lenient 180-month

sentence allegedly recommended in a plea offer that was withdrawn. Robinson also alleged

that Hudson coerced him into pleading guilty. Robinson requested that he be allowed to

withdraw his plea so that he can be apprised of the first plea offer and allowed the

“opportunity to consider said plea.”

       The circuit court denied the petition without a hearing and concluded that Robinson

raised no allegations with regard to Duncan’s representation in case numbers 60CR-13-851

and 60CR-13-933; that Robinson’s allegation of coercion was contradicted by plea

statements executed by him; that Robinson failed to establish the existence of another plea

offer or the date on which it was made known to Hudson; and that the allegations and the

request for relief set out in the petition were insufficient to warrant relief under Rule 37.1

of the Arkansas Rules of Criminal Procedure.

       This court will not reverse the circuit court’s decision granting or denying

postconviction relief unless it is clearly erroneous. Adkins v. State, 2015 Ark. 336, at 1, 469

S.W.3d 790,794. 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. When considering an appeal from a trial

court’s denial of a postconviction petition based on a claim of ineffective assistance of



       1 The two sentencing orders that are contained in the record reflect that Robinson
was sentenced to a total term of 540 months’ imprisonment for the offenses charged in case
number 60CR-11-3885, with an additional 180 months’ imprisonment for the possession
of a controlled substance in case number 60CR-13-933. These sentences were imposed
consecutively. Therefore, the 60-year sentence (720 months) alleged in the Rule 37.1
petition pertains to the sentences imposed in these two separate cases.
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counsel, the sole question presented is whether under the standard announced in Strickland

v. Washington, 466 U.S. 668 (1984), the circuit court clearly erred when it held that counsel

was not ineffective. Hooks v. State, 2015 Ark. 258, at 3–4, 465 S.W.3d 416, 419 (per

curiam). Under the Strickland test, a petitioner must show that counsel’s performance was

deficient, and a petitioner must demonstrate that he was prejudiced by counsel’s deficient

performance. Pennington v. State, 2013 Ark. 39, at 1–2 (per curiam). A petitioner must

satisfy both prongs of the test, and it is not necessary to determine whether counsel was

deficient if the petitioner fails to demonstrate prejudice as to an alleged error. Id.

       To demonstrate prejudice where a plea offer has lapsed or been rejected because of

counsel’s deficient performance, a petitioner must show a reasonable probability both that

the plea offer would have been accepted had counsel communicated the offer and that the

plea would have been entered without the prosecution’s canceling it or the trial court’s

refusal to accept it. Missouri v. Frye, 132 S. Ct. 1399, 1402–03 (2012). Thus, a petitioner

must demonstrate that but for counsel’s deficient performance, the result of the proceedings

would have been different. Id. at 1410. Allegations of ineffective assistance of counsel in

the context of plea negotiations must establish some direct correlation between counsel’s

deficient behavior and the decision to enter the plea. Pennington, 2013 Ark. 39, at 1–2.

       A bare assertion that a plea offer was made, standing alone, is insufficient to warrant

relief based on an ineffective-assistance-of-counsel claim alleging that counsel failed to

communicate the offer. Huddleston v. State, 347 Ark. 226, 230–31, 61 S.W.3d 163, 167–

68 (2001) (per curiam) (citing Scott v. State, 286 Ark. 339, 691 S.W.2d 859 (1985) (per

curiam)). A collateral attack on a valid judgment must be founded on more than an

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unsubstantiated allegation, and a petitioner who provides no evidence that a State plea offer

existed that counsel failed to communicate has no merit and should be denied. Huddleston,

347 Ark. at 230–31, 61 S.W.3d at 167–68. Therefore, based on the absence of any evidence

that the plea offer was made, Robinson’s bare allegation fails to warrant relief.

       Even assuming that Robinson presented sufficient proof that a more lenient plea offer

was made, his allegations are insufficient to warrant relief under the standard enunciated in

Frye, 132 S. Ct. 1399. Robinson did not allege that he would have accepted the offer had

counsel communicated it to him, and he did not allege that he would have accepted the

plea offer if his request for postconviction relief had been granted. Rather, Robinson merely

asked that he be given the opportunity to consider accepting the offer. Furthermore, the

assertions made in Robinson’s Rule 37.1 petition did not establish a correlation between

his counsel’s alleged failure to communicate the plea offer and the outcome of the

proceeding. According to the allegations contained in the petition, the favorable plea offer

was withdrawn because Robinson was charged with first-degree murder, not because

counsel delayed communicating the offer within a stated time frame. In sum, Robinson

failed to state facts sufficient to demonstrate a reasonable probability that, but for counsel’s

errors, a more lenient plea offer would have remained on the table and would have been

accepted by him. See Frye, 132 S. Ct. at 1411 (remanding to determine prejudice because

there was reason to doubt that the prosecution would have adhered to the original offer

after Frye committed an additional offense).

       Finally, Robinson alleged that counsel coerced him into pleading guilty because after

he was charged with first-degree murder, counsel stated that Robinson was “the stupidest

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person she had ever dealt with” and later sent Robinson a letter apologizing for her remarks.

Robinson fails to explain how this conduct intimidated him into pleading guilty.

       The circuit court did not clearly err when it denied Robinson’s petition for

postconviction relief.

       Appeal dismissed; motions moot.




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