Travis Price v. State of Arkansas , 2023 Ark. 36 ( 2023 )

Cite as 2023 Ark. 36SUPREME COURT OF ARKANSAS
No. CR-22-496
Opinion Delivered: March 9, 2023
TRAVIS PRICE
APPELLANT PRO SE APPEAL FROM THE
JEFFERSON COUNTY CIRCUIT
V. COURT
[NO. 35CR-16-253]
STATE OF ARKANSAS HONORABLE JODI RAINES DENNIS,
APPELLEE JUDGE
AFFIRMED.
ROBIN F. WYNNE, Associate Justice
Travis Price appeals the trial court’s denial and dismissal of his petition for
postconviction relief filed pursuant to Rule 37.1 of the Arkansas Rules of Criminal
Procedure (2021). On appeal, Price contends that he is entitled to postconviction relief
because trial counsel was ineffective for failing to investigate his case or interview witnesses,
for failing to address and provide proof regarding his federal-parole status during his
suppression hearing, and for failing to investigate mitigation evidence for sentencing.
Because Price has not demonstrated entitlement to Rule 37.1 postconviction relief, we affirm
the trial court’s denial and dismissal of the petition.
A Jefferson County jury convicted Price of first-degree felony murder, two counts of
aggravated robbery, and a felon-in-possession-of-a-firearm enhancement. Price was sentenced
as a habitual offender to an aggregate term of life imprisonment. We affirmed. Price v. State,
2019 Ark. 323, 588 S.W.3d 1.
We will not reverse the trial court’s ruling on a petition for postconviction relief
under Rule 37.1 unless it is clearly erroneous. Sirkaneo v. State, 2022 Ark. 124, 644 S.W.3d
392. A finding is clearly erroneous when, although there 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 made. Williams v. State, 2019 Ark. 129, 571 S.W.3d 921.
Our standard for ineffective-assistance-of-counsel claims is the two-prong analysis set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Reynolds v. State, 2020 Ark. 174, 599
S.W.3d 120. Under the Strickland standard, to prevail on a claim of ineffective assistance of
counsel, the petitioner must show that (1) counsel’s performance was deficient and (2) the
deficient performance prejudiced his defense. Id. Unless a petitioner makes both showings,
the allegations do not meet the benchmark on review for granting relief on a claim of
ineffective assistance. Id. To demonstrate prejudice, the petitioner must show there is a
reasonable probability that, but for counsel’s errors, the fact-finder would have had a
reasonable doubt respecting guilt. Id. A reasonable probability is a probability sufficient to
undermine confidence in the outcome of the trial. Id.On appeal, Price contends that trial counsel was ineffective. Specifically, Price argues
that trial counsel failed to investigate pretrial issues such as contacting and interviewing a
critical eyewitness, Angela Davis; and that he failed to produce documentation that Price
was under federal supervision at the time of his arrest, which was an issue that “grew to epic
2
proportions beyond prejudicial during Price’s [ ] motion to suppress statement hearing.” He
further argues that trial counsel failed to investigate mitigation, interview potential witnesses,
and prepare an adequate defense for the sentencing phase, particularly when he requested
that counsel interview a witness, Galvester Walker, a close relative. Notably, Price’s Rule 37.1
petition made general claims that trial counsel was ineffective for failing to conduct any
independent investigation of the facts and circumstances of Price’s case, interview any
potential witnesses, or conduct an adequate investigation of mitigation to present in the
sentencing phase. Price did file a “second amended petition” for postconviction relief; 1
however, the trial court found that Price failed to petition for leave to amend, and it did not
make any findings on the merits of the amended petition,2 such that the court’s order
1
In his second amended petition, Price argued that trial counsel failed to
independently investigate his case and that trial counsel failed to investigate mitigation
evidence for sentencing, including interviewing Walker and other character witnesses. Price
raised additional grounds: trial counsel was ineffective during a suppression hearing by
failing to follow through with objections by bringing out supporting documentation of
Price’s federal-parole status; trial counsel was ineffective for failing to state claims that
required suppression of his pretrial statements; his convictions were obtained in violation of
due process and double jeopardy; and his convictions violated the Sixth and Fourteenth
Amendments.
2
Our rules of criminal procedure do allow for the amendment of a Rule 37 petition,
but only with leave of the court. Ark. R. Crim. P. 37.2(e). The record does not reflect that
Price sought leave to amend, nor does he challenge the issue on appeal.
3
dismissing and denying relief was limited to the grounds filed in the original Rule 37.1
petition.3
Price’s argument regarding trial counsel’s failure to conduct a pretrial investigation—
specifically, his failure to interview Angela Davis—is an argument greatly expanded on appeal.
An appellant is limited to the scope and nature of the claims raised below in a Rule 37.1
proceeding and cannot raise new arguments on appeal. Elliot v. State, 2022 Ark. 165, 653
S.W.3d 776. In the same vein, Price’s contention regarding trial counsel’s failure to produce
documentation that he was under federal supervision at the time of his arrest is being raised
for the first time on appeal and will not be addressed. See Winkle v. State, 2016 Ark. 98, at
14–15, 486 S.W.3d 778, 788 (holding that an argument was not preserved for appellate
review and this court was precluded from review on appeal where the trial court had not
provided a ruling on the argument).
Under Rule 37.1, Price’s assertion that his trial counsel was ineffective for failing to
conduct an adequate pretrial investigation, must delineate the actual prejudice that arose
from the failure to investigate and demonstrate a reasonable probability that the specific
material that would have been uncovered without further investigation could have changed
the outcome of the trial. Gordon v. State, 2018 Ark. 73, 539 S.W.3d 586. Neither conclusory
3
Although the State argues that Price’s failure to challenge the trial court’s finding
that the “form of the petition fails to comply with Rule 37.1(b) and is subject to dismissal[]”
is fatal to his appeal, the trial court did proceed to address the merits of the petition in its
order denying the petition and dismissing it with prejudice. See Barrow v. State, 2012 Ark.
197 (Rule 37.1(b) does not deprive a court of authority to rule on the merits of a petition if
it elects to do so.).
4
statements nor allegations without factual substantiation are sufficient to overcome the
presumption that counsel’s representation was effective under the Strickland standard and
cannot provide a basis for postconviction relief. Id. General assertions that counsel did not
aggressively prepare for trial are not sufficient to establish a claim of ineffective assistance of
counsel. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895.
Notwithstanding the claims that cannot be addressed on appeal, Price generally
claims that counsel refused to interview potential witnesses after he asked counsel to do so
and that counsel did not make an independent investigation of the facts and circumstances
of the case and simply relied on the information in the State’s file. The claim was conclusory
and lacked the factual substantiation necessary to overcome the presumption that trial
counsel’s conduct falls within the wide range of reasonable professional assistance, and the
argument did not provide a basis for postconviction relief. Gordon, 2018 Ark. 73, 539 S.W.3d
586.
Price argues that trial counsel was ineffective for failing to investigate mitigation
evidence by not interviewing potential witnesses and refusing to prepare an adequate
character defense. Price contends that Walker is a close relative who witnessed a “majority
of the lessons, achievements, an[d] downfalls that Price has experienced throughout his
life[,]” and should have been interviewed by counsel. Notwithstanding Price’s claims of
Walker’s observations of his life, Price fails to present specific evidence to demonstrate that
prejudice arose and establish a reasonable probability that the information Walker could
5
have provided would have changed the outcome of the trial. Wertz, 2014 Ark. 240, 434
S.W.3d 895.
Affirmed.
Travis Price, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.
6