                                   Cite as 2016 Ark. 211

                SUPREME COURT OF ARKANSAS
                                       No.   CR-15-927

DION DASHONNE ROBINSON                            Opinion Delivered   May 19, 2016
                  APPELLANT
                                                  APPEAL FROM THE PULASKI
V.                                                COUNTY CIRCUIT COURT
                                                  [NO. 60CR 12-3591]
STATE OF ARKANSAS
                                                  HONORABLE LEON JOHNSON,
                                 APPELLEE         JUDGE

                                                  AFFIRMED.


                       JOSEPHINE LINKER HART, Associate Justice

       Dion Dashonne Robinson is in the custody of the Arkansas Department of

Correction after he pleaded guilty to four counts of aggravated robbery, four counts of theft

of property, and one misdemeanor count of possession of a controlled substance. The

circuit court sentenced Robinson to a twenty-year sentence in the Arkansas Department of

Correction for each of the eight felonies, plus a one-year jail term for the possession charge.

All of the sentences were set to run concurrently. Robinson appeals from the denial of his

petition for post-conviction relief filed pursuant to Rule 37 of the Arkansas Rules of

Criminal Procedure. He argues that the circuit court erred in not granting a hearing on his

petition. We affirm the circuit court’s summary denial of Robinson’s petition.

       Robinson was charged by information with committing four counts of aggravated

robbery, four counts of felony theft of property, and one count of misdemeanor possession

of marijuana. At a February 28, 2013 status hearing, Robinson appeared with counsel,

Jimmy Morris. The State offered a sentence recommendation in exchange for a guilty plea.
                                   Cite as 2016 Ark. 211

Although the terms of the offer were not announced, Robinson stated on the record that

he was advised by counsel and understood the offer. Nonetheless, the record establishes that

Robinson rejected the State’s offer. The State then announced that the plea offer was being

withdrawn. The information was subsequently amended to include a firearm enhancement.

       On June 5, 2014, Robinson again appeared with his trial counsel. The State again

tendered a plea deal, offering Robinson eight concurrent twenty-year sentences with no

firearm enhancement. This time Robinson accepted the offer and entered his guilty plea.

The sentencing order was entered on June 16, 2014. Robinson timely filed a petition for

postconviction relief on September 11, 2014. In his petition, Robinson alleged two

grounds:

      (1) Defense Counsel was constitutionally ineffective for not properly representing the
      defendant during plea negotiations. Defense Counsel should have properly informed
      the defendant that, upon the defendant’s rejection of an offer made by the State, the
      State intended for all future offers to involve stricter punishment terms.

       (2) Defense Counsel was constitutionally ineffective for not properly representing the
       defendant during plea negotiations. Defense Counsel should have conducted
       additional plea negotiations with the prosecutor as directed by the defendant.

The factual underpinning of Robinson’s second issue involves an accusation that his trial

counsel’s failure to offer to exchange information about alleged accomplices for a lighter

sentence.

       The State responded that Robinson’s petition failed to state facts sufficient to even

warrant holding an evidentiary hearing. It asserted that Robinson’s contention that he was

initially offered a sentence recommendation of only ten years is a “lie.” Further, the State

argued that Robinson’s trial counsel was not ineffective because he failed to anticipate that

                                             2
                                   Cite as 2016 Ark. 211

the State would amend the information some thirteen months later to include a firearm

enhancement. It likewise rejected Robinson’s contention that his trial counsel could have

offered to trade information regarding accomplices for a more favorable sentence

recommendation, because the State had no interest in whatever Robinson had to say about

the subject. Finally, the State contended that Robinson showed no prejudice because he was

allowed to accept the only sentence offer it had made: eight concurrent twenty-year

sentences in the Arkansas Department of Correction.

       The circuit court denied Robinson’s petition without a hearing. Citing Scott v. State,

2012 Ark. 199, 406 S.W.3d 1, the circuit court stated that for the case of a petitioner who

had entered a guilty plea to have a claim cognizable under Rule 37, he was required to

demonstrate a reasonable probability that, but for counsel’s errors, he would not have

entered the plea and would have insisted on going to trial. The circuit court concluded that

the petition and the files and record of the case conclusively showed that Robinson was

entitled to no relief. It further found that “Petitioner has failed to show any error made by

counsel, any prejudice created by counsel’s conduct, or any insistence on going to trial at any

time.” Robinson timely appealed from this order.

       This court does not reverse a denial of postconviction relief unless the circuit court’s

findings are clearly erroneous. Adams v. State, 2013 Ark. 174, 427 S.W.3d 63. A finding is

clearly erroneous when, although there is evidence to support it, after reviewing the entire

evidence, we are left with the definite and firm conviction that a mistake has been

committed. Id. In making a determination on a claim of ineffective assistance of counsel,


                                              3
                                     Cite as 2016 Ark. 211

this court considers the totality of the evidence. Id. Our standard of review requires that

we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme

Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984): that the

performance of petitioner’s counsel was deficient, that is, made errors so serious that counsel

was not functioning as the counsel guaranteed by the Sixth Amendment, and the petitioner

was prejudiced by counsel’s performance. Id. As noted previously, when the Strickland

ineffectiveness test is applied to situations involving the entry of a guilty plea, the question

is whether but for counsel’s unprofessional errors, is there a reasonable probability that the

petitioner would not have pleaded guilty and would have insisted on going to trial. Scott v.

State, supra.

        In discussing the Strickland standard, with respect to allegations of ineffective assistance

of counsel when a guilty plea has been entered, the Court noted that “the first half of the

Strickland v. Washington test is nothing more than a restatement of the standard of attorney

competence already set forth in Tollett v. Henderson.”1 The Tollett Court, however, identified

a significantly different focus in the prejudice prong—“whether counsel’s constitutionally

ineffective performance affected the outcome of the plea process. In other words, in order

to satisfy the “prejudice” requirement, the defendant must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial.” Id.



       1
         Tollett v. Henderson, 411 U.S. 258 (1973) (counsel’s advice to plead guilty must fall
outside the range of competence demanded of attorneys in criminal cases).

                                                 4
                                     Cite as 2016 Ark. 211

       Summary disposition of petitions for postconviction relief is governed by Rule 37.3(a)

of the Arkansas Rules of Criminal Procedure: “(a) If the petition and the files and records

of the case conclusively show that the petitioner is entitled to no relief, the trial court shall

make written findings to that effect, specifying any parts of the files, or records that are relied

upon to sustain the court’s findings.”

       On appeal, Robinson argues that the circuit court erred by not conducting an

evidentiary hearing. He argues that his trial counsel was ineffective because he failed to

advise him of the implications of rejecting a ten-year plea offer and failing to offer

information about accomplices in exchange for a more favorable plea offer. Robinson notes

that Rule 37.3(a) requires an evidentiary hearing unless the files and records of the case

conclusively show that the petitioner is not entitled to relief. He asserts that there is a

disputed issue as to whether the State made a ten-year-sentencing offer and how this offer

was relayed to him by trial counsel. There is likewise a dispute regarding the bargaining

value of accomplice information that he could have provided. Accordingly, Robinson

argues, the disposition of this case without an evidentiary hearing was not appropriate.

       Robinson has failed to allege sufficient facts that, even if true, would make a prima

facie case of showing that his trial counsel’s performance was deficient. The record

demonstrates that Robinson was informed of the State’s initial sentencing offer by his trial

counsel, and it was Robinson’s decision to reject it. His trial counsel was not ineffective

because he failed to predict the substance of a future sentencing offer by the State—if one

was offered.    The Constitution guarantees only that his counsel be competent, not


                                                5
                                      Cite as 2016 Ark. 211

omniscient.

       Robinson also fails to alleged that, but for his counsel’s error, he intended to go to

trial. He was charged with four class Y felonies, four class B felonies, and a firearm

enhancement for each count. His allegations concerned only the length of the sentence

recommendation, not his foregoing his right to a trial. Accordingly, Robinson’s petition

does not demonstrate that he is entitled to postconviction relief. See Scott v. State, supra.

Finally, there is no indication that the State had any interest in whether there might have

been accomplices to Robinson’s crimes. Accordingly, we hold that Robinson’s argument

that his trial counsel should have used that information as a bargaining chip for a better

sentencing recommendation does not establish that his trial counsel’s performance was

deficient. Because Robinson has failed to allege facts sufficient for us to hold that his trial

counsel’s performance was deficient or state “but for” the alleged deficiency he would have

sought a jury trial, we find no error in the circuit court’s summary denial of Robinson’s

petition for postconviction relief.

       Affirmed.

       Charles D. Hancock, for appellant.

       Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.




                                               6
