ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION
SEPTEMBER 11, 2003

GLENN EDWARD WHITHAM

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 01-528

APPEAL FROM THE CIRCUIT COURT OF SEVIER COUNTY, CR 98-17, HONORABLE CHARLES A. YEARGAN, JUDGE

AFFIRMED

Per Curiam

Appellant pled guilty to manufacturing a controlled substance, methamphetamine. He was sentenced to thirty years' imprisonment. The Arkansas Court of Appeals affirmed. Whitham v. State, 69 Ark. App. 62 (2000). Appellant filed a timely petition for postconviction relief pursuant to Ark. R. Cr. P. 37. The circuit court held a hearing, and subsequently issued an order and a supplemental order denying relief. Appellant contends that the circuit court erred in doing so. We affirm.

Facts

On February 9, 1998, Bobby Pierce arrived at his girlfriend's apartment, #49, to find appellant sleeping in one of the bedrooms. After being awakened, appellant began smoking methamphetamine, and explaining how to cook it. He asked Mr. Pierce to obtain pseudoephedrine to prepare methamphetamine. It was decided that the cooking of the methamphetamine would take place in the next door apartment, #50.

Mr. Pierce left the apartment, and contacted his brother, a member of the Drug Task Force. Officers provided Mr. Pierce with pseudoephedrine, which he took to appellant in apartment #50. Appellant immediately began to break apart the pseudoephedrine pellets. The police obtained a search warrant for apartment #50 and executed it in the early morning hours of February 10, 1998. Appellant was present, along with what was described as a "meth lab."

Ineffective Assistance of Counsel

We do not reverse a trial court's denial of postconviction relief unless the ruling was clearly erroneous. Seek v. State, 330 Ark. 833, 835, 957 S.W.2d 709, 711 (1997). When a guilty plea is challenged under Rule 37, the sole issue is whether the plea was intelligently and voluntarily entered with the advice of competent counsel. Beulah v. State, __ Ark. __, __, 101 S.W.3d 802, 804 (2003); Mills v. State, 338 Ark. 603, 606, 999 S.W.2d 674, 675 (1999). Rule 37 does not provide an avenue to raise matters that could have been raised on direct appeal, including constitutional claims. Beulah, supra. It is not meant to function as a second opportunity to petition for rehearing or review. See Neal v. State, 270 Ark. 442, 447, 605 S.W.2d 421, 424 (1980).

To determine the competency of counsel, we apply the standard adopted in Strickland v. Washington, 466 U.S. 668 (1984), in which the petitioner must prove that "counsel's performance fell below an objective standard of reasonableness and that, but for counsel's errors, there is a reasonable probability that the outcome would have been different." Seek, 330 Ark. at 835, 957 S.W.2d at 711 (quoting McCuen v. State, 328 Ark. 46, 58, 941 S.W.2d 397, 403 (1997)). The petitioner carries the burden of overcoming the presumption that counsel is competent. Id. In order to show prejudice, a petitioner 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. Buchheit v. State, 339 Ark. 481, 483, 6 S.W.3d 109, 111 (1999). A defendant who has pleaded guilty necessarily has difficulty in establishing prejudice given that his or her conviction is premised on an admission of guilt of the crime charged. State v. Herred, 332 Ark. 241, 251, 964 S.W.2d 391, 397 (1998)(citing Thompson v. State, 307 Ark. 492, 821 S.W.2d 37 (1991)). Ineffective assistance of counsel cannot be established merely by showing that an error was made by counsel or by revealing that a failure to object prevented an issue from being addressed on appeal. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)).

Appellant first claims that his trial counsel was ineffective for failing to establish at his pre-trial suppression hearing that appellant had standing to challenge the nighttime execution of a search warrant. An appellant must have standing to assert Fourth Amendment rights because those rights are personal in nature. State v. Bowers, 334 Ark. 447, 450, 976 S.W.2d 379, 381 (1998). The United States Supreme Court has pronounced a per se rule that one's status as an overnight guest is, alone, enough to show that one had an expectation of privacy in the home that society is prepared to recognize as reasonable. Heard v. State, 316 Ark. 731, 735, 876 S.W.2d 231, 233 (1994)(citing Minnesota v. Olson, 459 U.S. 91 (1990)).

Appellant's argument stems from the contrary disposition of his co-defendant's direct appeal. In their direct appeals, appellant and his co-defendant, Stephen Scott Whitaker, challenged the sufficiency of the affidavit underlying the nighttime search warrant for apartment #50, where they were arrested. The court of appeals reversed and remanded Mr. Whitaker's conviction, concluding that the affidavit failed to state sufficient facts to justify the nighttime search. Whitaker v. State, CACR 99-309 (Ark. App. Dec. 15, 1999)(unpublished). In appellant's case, however, the court of appeals concluded that he lacked standing to challenge the legality of the search. Whitham, 69 Ark. App. at 63-64, 12 S.W.3d at 639-40. Appellant argues that had his trial counsel properly established standing at his suppression hearing, then the court of appeals would have reached a different decision on appeal.

Appellant has not shown that his trial counsel's performance fell below an objective standard of reasonableness. At the Rule 37 hearing, appellant's trial counsel testified that he asked specific questions to show that appellant had standing to challenge the search warrant. He stated that he wanted to establish that the search warrant was executed at around 3 a.m., and that appellant had an expectation of privacy in apartment #50 as an overnight guest. As appellant summarizes in his brief, his counsel elicited testimony at the suppression hearing that appellant had moved from apartment #49 to apartment #50, and that the search warrant was executed at 2:55 a.m. Also, Mr. Pierce testified at the suppression hearing that appellant and Mr. Whitaker planned on spending the night in apartment #50, where they were going to manufacture methamphetamine. Appellant contends, however, that his counsel did not fully cross-examine Mr. Pierce at the suppression hearing. He submits that his counsel should have reviewed the transcripts from his co-defendant's trial and discovered that Mr. Pierce had previously testified that his girlfriend had forced appellant and Mr. Whitaker out of apartment #49, and had taken away their key to the apartment. According to appellant, the court of appeals would have reversed his conviction if this additional evidence had been available for review on direct appeal.

Whether appellant's counsel established evidence of appellant's standing at the suppression hearing is a question upon which effective attorneys could disagree. The first prong under Strickland revolves around the performance of appellant's counsel in presenting evidence of appellant's standing, not the eventual success or failure of counsel's efforts. In resolving the issue, we do not judge the performance of trial counsel by hindsight. Stobaugh v. State, 298 Ark. 577, 580, 769 S.W.2d 26, 28 (1989). If there is a rational and logical basis for the manner in which he tried the case we will not second guess him. Id. Appellant's counsel demonstrated at the Rule 37 hearing that he knew the standard for establishing standing. He testified that he sought to establish appellant's standing by eliciting certain testimony, and that he felt that he had achieved his goal. Although appellant contends that Mr. Pierce could have provided additional key testimony at the suppression hearing, he did not present Mr. Pierce at the Rule 37 hearing to testify as such despite having the burden of proof on this point. State v. Goff, 349 Ark. 532, 538, 79 S.W.3d 320, 324 (2002). Considering the evidence presented at the suppression hearing and Rule 37 hearing, we cannot say that the circuit clearly erred in concluding that the performance of appellant's counsel at the suppression hearing did not fall below an objective standard of reasonableness.

Most importantly, appellant has not shown, or properly alleged, prejudice resulting from his trial counsel's performance. In order to show prejudice, appellant must show that there is a reasonable probability that, but for his counsel's alleged error, he would not have pleaded guilty and would have insisted on going to trial. Buchheit, 339 Ark. at 483, 6 S.W.3d at 111. Appellant made no such allegation in his petition; nor does he make the requisite allegation on appeal. Instead, appellant alleges that, but for his counsel's alleged error, the court of appeals would have reached a different decision in his direct appeal. In effect, appellant's alleged prejudice would require this court to review the court of appeal's resolution of the standing issue. Rule 37, however, does not allow appellant to reargue points decided on direct appeal. Kemp v. State, 348 Ark. 750, 765, 74 S.W.3d 224, 232 (2002). It is not meant to function as a second opportunity to petition for rehearing or review. See Neal, supra. Appellant has not shown that his counsel's performance was deficient or that he suffered prejudice. Accordingly, the circuit court did not clearly err in denying relief on this claim.

Appellant raises two additional claims of ineffective assistance of counsel. He claims that his appellate counsel was ineffective for not rebutting the State's argument on direct appeal that he lacked standing, and that his trial counsel was ineffective for not developing an entrapment defense. These claims, however, are not cognizable. When a guilty plea is challenged under Rule 37, the sole issue is whether the plea was intelligently and voluntarily entered with the advice of competent counsel. Beulah, supra. Because appellant's claims are not cognizable under Rule 37, postconviction relief is not warranted. Id.

Other Claims on Appeal

Appellant raises four other claims in his appeal of the denial of his Rule 37 petition. For the reasons below, we affirm the circuit court's order denying relief.

Appellant claims that the circuit court erred in refusing to admit into evidence at his Rule 37 hearing the complete records from his direct appeal and the direct appeal of his co-defendant, Mr. Whitaker. Appellant argues that admission of the records in both appeals was necessary to prove his Rule 37 claims. The circuit court ruled that selected pages were admissible, but that the complete records of both proceedings were not admissible. On appeal, we will not reverse a ruling on the admission of evidence absent an abuse of discretion; nor will we reverse absent a showing of prejudice. Box v. State, 348 Ark. 116, 128, 71 S.W.3d 552, 559-60 (2002).

A transcript lodged in an appellate court on direct appeal of the judgment is a public record. Johnson v. State, 332 Ark. 182, 183, 964 S.W.2d 199, 199 (1998). As such, the record from appellant's direct appeal need not be incorporated into the record of his Rule 37 appeal stemming from the same judgment of conviction. See id. Although it is necessary for an appellant in a Rule 37 appeal to abstract the material portions of the direct appeal record, appellant notes in his argument that all relevant portions of his direct appeal record have been abstracted and included in his brief in this appeal. Id. As such, appellant suffered no prejudice from the circuit court's ruling in regards to his appellate transcript.

Appellant contends that Mr. Whitaker's complete direct appeal record was necessary to prove his claims of ineffective assistance of counsel. He also argues that it was needed to prove his separate claim that the court of appeals denied him his right to due process and equal protection of the law by reaching a disposition in his direct appeal that differed from Mr. Whitaker's direct appeal.

The circuit court did not abuse its discretion in refusing to admit into evidence the complete record of Mr. Whitaker's direct appeal at appellant's Rule 37 hearing. As noted, Fourth Amendment rights are personal in nature and appellant had the burden to establish that his Fourth Amendment rights, not Mr. Whitaker's, were violated by the challenged search and seizure. Bowers, 334 Ark. at 450, 976 S.W.2d at 381. As discussed in our review of appellant's ineffective assistance claims, the circuit court admitted into evidence the testimony Mr. Pierce gave at Mr. Whitaker's trial that appellant submits was relevant to his claim that his counsel was ineffective in failing to establish his standing. Appellant failed to show that his counsel was ineffective in failing to establish his standing, and his other ineffective assistance of counsel claims are not cognizable under Rule 37 because he pled guilty. Thus, in relation to his ineffective assistance of counsel claims, appellant cannot show prejudice from the circuit court's refusal to admit into evidence Mr. Whitaker's complete direct appeal record.

Furthermore, we refuse to consider appellant's separate claim that the court of appeals denied him due process and equal protection of the law by reaching a disposition in his direct appeal that differed from Mr. Whitaker's direct appeal. Rule 37 is not meant to function as a second opportunity to petition for rehearing or review. See Neal v. State, 270 Ark. at 447, 605 S.W.2d at 424. Yet, appellant's claim equates to a request for a belated petition for review of the court of appeals' decision in his direct appeal. Because we refuse to consider appellant's separate claim, he cannot show prejudice in that regard from the circuit court's refusal to admit Mr. Whitaker's direct appeal record.

Appellant's final claim is that the cases cited by the court of appeals in affirming his conviction were not applicable to the facts of his case. The circuit court did not address this claim in its order or supplemental order denying relief. It was appellant's obligation to obtain a ruling in order to properly preserve an issue for review. Huddleston, 347 Ark. at 228, 61 S.W.3d at 166 (2001). Moreover, the argument on its face again equates to a request for a belated petition for review of the court of appeals' decision. See Neal, supra. Indeed, appellant raised this issue in his petition for rehearing before the court of appeals. For these reasons, we will not consider this issue on appeal.

The circuit court did not clearly err in denying appellant's petition for postconviction relief pursuant to Rule 37. Accordingly, we affirm the circuit court's orders.

Affirmed.

Thornton, J., not participating.