NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION II

CACR01-939

JULY 3, 2002

JAMES D. LOGAN AN APPEAL FROM THE GARLAND APPELLANT COUNTY CIRCUIT COURT

v. [CR 2000-208 I]

STATE OF ARKANSAS HONORABLE JOHN HOMER WRIGHT, JUDGE

APPELLEE

AFFIRMED

Appellant, James Logan, pled guilty to sexual assault in the first degree. He was sentenced to ten years' imprisonment in the Arkansas Department of Correction. Pursuant to Anders v. California, 386 U.S. 738 (1967) and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw as counsel on the grounds that the appeal is wholly without merit. The motion is accompanied by an abstract and brief referring to everything in the record that might arguably support the appeal, including all motions, objections, and requests decided adversely to appellant, and a statement of reasons why none of those rulings would be a meritorious ground for reversal. In the brief, appellant's counsel addresses the two adverse rulings that were made in appellant's case: 1) denial of appellant's motion to withdraw his plea of guilty due toineffective assistance of counsel; and 2) denial of appellant's post-plea motion to dismiss for lack of a speedy trial. We agree with appellant's counsel that none of these rulings constitute reversible error.

Usually, when a defendant pleads guilty to a charge, he waives his right to appeal that conviction. See Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998); see also Ark. Code Ann. § 16-91-101(c) ("There shall be no appeal from a plea of guilty or nolo contendere."). However, appellant in this case argues ineffective assistance of counsel as the reason for withdrawing his plea of guilty as is permitted under Ark. R. Crim. P. 26.1 (2002). Thus, in order to have his motion to dismiss for lack of a speedy trial considered, appellant must first show that his counsel was ineffective.

The criteria for assessing the effectiveness of counsel were enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Dansby v. State, 347 Ark. 674, 66 S.W.3d 585 (2002). Strickland provides that when a convicted defendant complains of ineffective assistance of counsel, he must show that counsel's representation fell below an objective standard of reasonableness and that counsel's deficient performance prejudiced his defense. Id. Judicial review of counsel's performance must be highly deferential, and a fair assessment of counsel's performance under Strickland requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's conduct, and to evaluate the conduct from counsel's perspective at the time. Id. (citing Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993)). A reviewing court must indulge in a strong presumption that the conduct falls within the wide range of reasonableprofessional assistance. Id.

To prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel's performance was deficient. Dansby, supra (citing Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995)). This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Id. Secondly, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. The petitioner must show that there is a reasonable probability that, but for counsel's errors, the fact finder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. (citations omitted).

Here, we cannot say that appellant's counsel was ineffective due to his determination not to file a speedy-trial motion. Appellant's counsel did not file a motion to dismiss for speedy trial because the appellant testified that counsel said that he thought it "wouldn't fly." Further, the evidence reveals that the State agreed not to amend its information to charge appellant as a habitual offender if appellant's counsel agreed not to file a motion to dismiss for speedy trial. As such, Logan's counsel's decision not to file a motion to dismiss based on speedy-trial grounds was a matter of trial strategy and did not constitute ineffectiveassistance of counsel. See Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001) ("matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel's professional judgment and are not grounds for a finding of ineffective assistance of counsel"); see also Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989) ("where a continuance agreement specifically waived any speedy trial claims, appellant did not meet the burden of establishing counsel was ineffective in allowing appellant to enter a guilty plea rather than pursue the speedy trial issue").

The last adverse ruling made by the trial court was its denial of appellant's motion to dismiss for speedy-trial purposes. We hold that because we cannot say that appellant's counsel was ineffective, appellant is not entitled to have his guilty plea withdrawn. Further, because appellant has pleaded guilty, he has waived his speedy-trial claim. See Rogers v. State, 66 Ark. App. 283, 989 S.W.2d 568 (1999).

In addition to the adverse rulings briefed by appellant's counsel, the clerk of this court furnished appellant with a copy of his counsel's brief and notified him of his right to file a pro se list of points on appeal within thirty days. Appellant has responded by filing a list of pro se points with this court. The State filed a brief in response to appellant's pro se points, asserting that the case should be affirmed in all respects.

Appellant argues that "the court erred in finding appellant failed to state a prima facie case of denial of speedy trial," and that "the court erred in finding that appellant failed to present showing of ineffective assistance of counsel for purpose of withdrawal of guilty plea." As evidenced, appellant's pro se points are the same his counsel's and have alreadybeen discussed above.

From our review of the record and the briefs presented to us, we find that there has been compliance with Rule 4-3(j) and hold that the appeal is without merit. Accordingly, counsel's motion to be relieved is granted, and appellant's convictions are affirmed.

Affirmed.

Jennings and Griffen, JJ., agree.