Pedraza v. State , 2016 Ark. LEXIS 75 ( 2016 )

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SUPREME COURT OF ARKANSAS.
No. CR-15-542
DANIEL PEDRAZA Opinion Delivered March 3, 2016
APPELLANT
APPEAL FROM THE DREW COUNTY
V. CIRCUIT COURT
[NO. 22CR-12-37]
STATE OF ARKANSAS HONORABLE SAM POPE, JUDGE
APPELLEE AFFIRMED.
PER CURIAM
In 2013, appellant Daniel Pedraza entered a plea of guilty to first-degree murder in
the death of his two-year-old stepdaughter. He elected to be sentenced by a jury. The jury
was instructed that the range of sentencing for the offense was ten to forty years or life, and
a sentence of life imprisonment was imposed. Pedraza appealed from the sentence, and this
court affirmed. Pedraza v. State, 2014 Ark. 298, 438 S.W.3d 226.
In 2014, Pedraza timely filed in the trial court a pro se verified petition for
postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013) seeking
to vacate the judgment on the grounds that he was denied effective assistance of counsel.
The petition was dismissed, and Pedraza brings this appeal.
Our standard of review in Rule 37.1 proceedings is that, on appeal from a trial court’s
ruling on a petitioner’s request for Rule 37 relief, this court will not reverse the trial court’s
decision granting or denying postconviction relief unless it is clearly erroneous. Wood v.
State, 2015 Ark. 477, ___ S.W.3d ___. A finding is clearly erroneous when, although there
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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 Rule 37.1 petition on the
grounds of ineffective assistance of counsel, the question presented is whether, under the
standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S.
668 (1984), the trial court clearly erred in holding that counsel’s performance was not
ineffective. Wood, 2015 Ark. 477, ___ S.W.3d ___; Anderson v. State, 2011 Ark. 488, 385
S.W.3d 783.
The rule for evaluating ineffective-assistance-of-counsel claims in cases involving
guilty pleas appears in Hill v. Lockhart, 474 U.S. 52 (1985). In Hill, the Supreme Court held
that the “cause and prejudice” test of Strickland applied to challenges to guilty pleas based
on ineffective assistance of counsel. The Court further held that in order to show prejudice
in the context of a guilty plea, the 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. Hill, 474 U.S. at 59. An appellant who has entered a guilty plea normally
will have considerable difficulty in proving any prejudice, as the plea rests upon an admission
in open court that the appellant did the act charged. Wood, 2015 Ark. 477, ___ S.W.3d
___. Further, a petitioner under Rule 37.1 must allege some direct correlation between
counsel’s deficient behavior and the decision to enter the plea. Scott v. State, 2012 Ark. 199,
406 S.W.3d 1.
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We first note that in his brief on appeal, Pedraza has reworded the claims raised
below to construct virtually new claims and has bolstered some of the allegations raised in
the Rule 37.1 petition by adding information. On appeal, we review only those specific
claims before the trial court. McLaughlin v. State, 2015 Ark. 335 (per curiam). Furthermore,
we do not consider factual substantiation added to bolster allegations made below. Id.
Pedraza first argues in this appeal that the trial court erred in its denial of his claim
that counsel failed to conduct an adequate investigation of the case and obtain medical
evidence to refute the medical evidence presented by the State as to the cause of the victim’s
death. In a related allegation, Pedraza contends that counsel failed to spend enough time
with him to discuss trial strategy and the overall theory of the defense. He asserts that, had
counsel spent greater time with him, valuable defenses, such as his mental dysfunction, would
have been discovered. Pedraza did not contend in his Rule 37.1 petition that, but for
counsel’s failure to spend more time with him or to investigate further, he would not have
entered a plea of guilty, and he did not contend that there was any specific information that
could have been uncovered by more time spent with him or with a more extensive
investigation by counsel.
To prevail on a claim of ineffective assistance of counsel for failure to investigate, the
petitioner must allege some direct correlation between counsel’s deficient performance and
the decision to enter the plea, or the petitioner is procedurally barred from postconviction
relief. Mancia v. State, 2015 Ark. 115, 459 S.W.3d 259. Conclusory statements to that
effect, without an alleged factual basis, do not suffice. Id. As Pedraza did not offer any
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specific information that could been discovered that would have changed his decision to
enter his plea, he did not show that counsel made any error. See Sandoval-Vega v. State,
2011 Ark. 393, 384 S.W.3d 508.
Pedraza also argued that counsel failed to present mitigation evidence such as the
testimony of his mother, his sister Lillian, and a close friend who could have testified about
“early childhood standards, relationship with higher powers, a non-violent person, military
background, academic achievements.” Counsel’s failure to present available mitigation
witnesses in the sentencing proceeding in a criminal case can constitute ineffective assistance
of counsel. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895. The petitioner, however, must
do more than state that there were additional witnesses who could have offered testimony in
mitigation; he must establish that counsel’s conduct was deficient. See id.
Here, counsel for Pedraza called several witnesses in mitigation, including two men
who had served with Pedraza in the military and testified about his military service and their
friendship. One of the men was a staff sergeant, who testified that he had served with Pedraza
in Iraq and that Pedraza was a good, reliable soldier who had earned commendations for his
service. Evidence of the commendations was admitted into evidence by the defense. The
other man testified that he and Pedraza had come under enemy fire and gone on more than
two hundred missions that were stressful and frightening.
The defense also called a part-time police officer who had been Pedraza’s neighbor.
The witness testified that Pedraza was a good person who had worked well with the
neighborhood children and had earned his respect.
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A priest testified about his service as Pedraza’s pastor and Pedraza’s involvement with
the church in activities such as delivering food to people in the community. The priest gave
his opinion that Pedraza was “very much esteemed” in his Christian faith.
Two of Pedraza’s sisters testified at length as to the deplorable living conditions of
the family when Pedraza was a child; illnesses the family suffered from drinking unsanitary
water; the lack of money, food, clothing, and medical care; his developmental delays as a
child; and his gentle nature and love of children. One sister described Pedraza’s crying as he
recounted his experiences in the military and displayed to the jury drawings done by Pedraza
depicting religious and patriotic themes. She also described how Pedraza had threatened to
commit suicide.
Pedraza did not establish in his Rule 37.1 petition that either his mother, his sister
Lillian, or the family friend could have added any significant information to the testimony
of the witnesses called by the defense in mitigation that would have affected the jury’s
decision that a sentence of life imprisonment was appropriate. Because Pedraza failed to
present specific evidence to demonstrate that prejudice arose and to demonstrate a
reasonable probability that the information uncovered with further investigation would have
changed the outcome of the proceeding, the trial court did not err in denying the relief
sought.
Pedraza next argues that the trial court erred when it ruled that counsel was not
ineffective when counsel waived prejudicial errors for appeal and when it ruled that his guilty
plea was not coerced by counsel. Within this allegation, Pedraza also contends that counsel
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erred in not objecting to the jury being sworn for the sentencing proceeding without further
voir dire. We find no error.
As we noted on appeal from the sentencing proceeding, the jury was selected in
Pedraza’s case, but it had not been sworn at the time the State and Pedraza reached the plea
agreement. In the agreement, the State agreed to waive the death penalty and reduce the
charge to first-degree murder, and Pedraza agreed to plead guilty to that charge and be
sentenced by the jury. Pedraza also agreed to waive any errors that may have occurred prior
to his plea. When the jury next appeared for the sentencing proceeding, counsel for Pedraza
sought to ask, or have the trial court ask, additional questions concerning their reaction to
Pedraza’s change in plea. The trial court denied the request, and counsel proffered the
questions it would have asked of the jury. The jury was sworn and ultimately determined
that Pedraza should be sentenced to life imprisonment. Pedraza argued on appeal that the
trial court had committed certain constitutional errors and abused its discretion in denying
his request to conduct additional voir dire of the jury. We held that the trial court did not
abuse its discretion in refusing to allow additional voir dire and that there was no violation
of Pedraza’s right to due process and an impartial jury. Pedraza, 2014 Ark. 298, at 7, 438
S.W.3d at 230. Because counsel did raise the issue concerning additional voir dire of the
jury, Pedraza did not show that counsel was ineffective.
As to Pedraza’s allegation that counsel was ineffective for waiving all issues raised
prior to the plea of guilty, the claim in the petition was entirely conclusory. That is, he did
not contend that a specific meritorious issue had been waived, and he did not explain how
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counsel’s conduct in agreeing to waive the issues coerced him to plead guilty. A petitioner
in a Rule 37.1 proceeding must do more than make a conclusory allegation unsupported
by facts. Mancia, 2015 Ark. 115, 459 S.W.3d 259. An allegation that prejudice was suffered
without any factual explanation about what form the prejudice took or how serious it was
is not enough to prove ineffective assistance of counsel. Id.
Pedraza also argued in his petition that counsel coerced him to enter the plea by
assuring Pedraza that he would likely obtain a new trial or a lesser sentence on retrial. The
argument was unclear in that it was the jury’s task to determine the appropriate sentence
within the range of sentencing for the offense to which Pedraza had pleaded guilty. There
was no provision by which the jury would grant a sentence less than the minimum sentence
within the range or order a new trial. Pedraza did not offer facts to demonstrate that his
plea was coerced.
Pedraza further alleged in his Rule 37.1 petition that he was prejudiced when the
State inquired of a witness who testified in mitigation how many children Pedraza would
have to kill before the witness changed his opinion of him. If Pedraza intended the
allegation to be a claim of ineffective assistance of counsel, counsel objected at the time the
question was asked. Pedraza did not contend that there was any further action that counsel
should have taken, and thus he did not establish that counsel was ineffective
Finally, Pedraza contends that the trial court’s order should be reversed because he
has established that the errors made by counsel, when considered cumulatively, establish that
he was denied effective assistance of counsel. It is well settled that this court does not
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recognize the concept of cumulative error in Rule 37.1 proceedings when assessing whether
a petitioner was afforded effective assistance of counsel. State v. Hardin, 347 Ark. 62, 60
S.W.3d 397 (2001) (holding that it was reversible error for the trial court to consider
cumulative error in assessing claims of ineffective assistance of counsel).
Affirmed.
Daniel Pedraza, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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