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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.
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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withdrawn.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
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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,
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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.
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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).
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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
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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.
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