Douglas David TRUE, Appellant v. STATE of Arkansas, Appellee
No. CR-16-983
Supreme Court of Arkansas
November 30, 2017
2017 Ark. 323
I respectfully dissent.
Baker and Wynne, JJ., join.
Leslie Rutledge, Att‘y Gen., by: Amanda Jegley, Ass‘t Att‘y Gen., for appellee.
Appellant Douglas David True appeals from the denial of his pro se petition for postconviction relief filed pursuant to
The underlying facts in this case are as follows: On December 17, 2014, True pleaded guilty to two counts of capital murder in the stabbing death of his pregnant girlfriend. True subsequently filed a timely postconviction petition alleging that in July 2014, he woke up on his living-room couch, after consuming an excessive amount of alcohol the night before, and discovered his girlfriend “laying in a bloody mess” on the bathroom floor. True alleged that trial counsel had unreasonably failed to fully investigate his case or to inform him of facts relevant to sentencing before insisting that True plead guilty to two counts of capital murder. True alleged that he would not have pleaded guilty if trial counsel had conducted a thorough investigation and had fully explained the prosecutor‘s intent.
In response to True‘s postconviction petition, the trial court appointed counsel,1 ordered a mental evaluation, and conducted an evidentiary hearing. The report issued on the mental evaluation provided the following conclusions: that True understood the proceedings against him and otherwise had the capacity to assist in his defense; that True did not manifest symptoms of a mental disease or defect; and that True did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the law. Furthermore, True was diagnosed as suffering from antisocial personality disorder and alcohol-abuse disorder, and True‘s reports of auditory and visual hallucinations were discounted as unreliable. Finally, the mental evaluation included a summary of the State‘s account of the relevant facts surrounding the crime and disclosed that the victim was five to six months pregnant at the time of her death; that True called 911 and stated that “he had done something bad that he didn‘t remember“; that True admitted to investigators that he and the victim had an argument on the night of the murder that had escalated into a physical altercation but that he did not recall any other events that occurred; and that True told investigators that he was not aware that anyone else was in the residence on the night of the murder.
True testified that due to intoxication, he had “blacked out” and had no memory of murdering his girlfriend. True admitted it was possible that he was the perpetrator, but insisted that he had never harmed anyone when he had previously “blacked out” due to intoxication. True insisted that he pleaded guilty solely to avoid the death penalty. On cross-examination, True admitted that the evidence showed that his girlfriend had been stabbed eleven times and had been beaten about the face and body.
The trial court entered a written order denying True‘s claim for relief and found that (1) trial counsel had reasonably investigated the facts and circumstances surrounding True‘s case; (2) that counsel‘s failure to make further investigation regarding True‘s mental-health history was not prejudicial; and (3) that it could not find that trial counsel was ineffective or that the petitioner was unwise for considering the possibility of a death sentence as an incentive for pleading guilty.
When a defendant pleads guilty, the only claims cognizable in Rule 37 proceedings are those that allege that the plea was not made voluntarily and intelligently or was entered without effective assistance of counsel. Herred, 332 Ark. at 251, 964 S.W.2d at 397 (citing Bryant v. State, 323 Ark. 130, 913 S.W.2d 257 (1996)). The two-part standard adopted by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is applied to determine the effectiveness of counsel when a defendant has pleaded guilty. Herred, 332 Ark. at 251, 964 S.W.2d at 397.
Accordingly, to be entitled to withdraw a guilty plea due to ineffective assistance of counsel, the petitioner must show that counsel‘s representation fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different in that the defendant must show that there is a reasonable probability that, but for counsel‘s error, he would not have pleaded guilty and would have insisted on going to trial. Id. (citing Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). Unless a petitioner makes both showings that counsel was ineffective and that he was prejudiced by trial counsel‘s errors, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Henington v. State, 2012 Ark. 181, at 5, 403 S.W.3d 55, 59. Moreover, there is no reason for a court deciding an ineffective-assistance claim to address both components of the inquiry if the defendant makes an insufficient showing on one. Id. (citing Strickland, 466 U.S. at 697). 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. Herred, 332 Ark. at 251, 964 S.W.2d at 397 (citing Thompson v. State, 307 Ark. 492, 821 S.W.2d 37 (1991)).
Second, True contends that trial counsel was ineffective for failing to request a mental evaluation before advising him to plead guilty. True further argues that trial counsel unreasonably failed to obtain his complete medical records from the military that would have revealed a history of major depression and anxiety.
To establish an affirmative defense based on allegations of mental disease or defect, a defendant has the burden of proving by a preponderance of the evidence that he lacked the capacity to conform his conduct to the requirements of the law or to appreciate the criminality of his conduct.
In his third ground for relief, True alleged below and argues on appeal that trial counsel pressured him into pleading guilty to avoid the death penalty, which True alleges had not been formally pursued by the prosecutor. If a defendant is charged with capital murder, death or life without parole are the only sentencing options available upon conviction. See
True alleged below and argues on appeal that counsel was ineffective because he did not inform True that the prosecutor had not filed a notice of intent to seek the death penalty. However, True points to no authority that imposes an affirmative duty on a prosecutor to announce an intention to seek the death penalty. Rather, the prosecutor may, with the permission of the court, waive the death penalty.
In view of the above, trial counsel‘s advice that True faced a possible death sentence was not erroneous as the death penalty remained a potential outcome of any trial. See Hill v. Lockhart, 894 F.2d 1009, 1010 (8th Cir. 1990) (erroneous advice with respect to sentencing that induced a guilty plea may constitute ineffective assistance of counsel); see also Huff v. State, 289 Ark. 404, 406, 711 S.W.2d 801, 802-03 (1986) (Ineffective assistance of counsel with regard to a guilty plea can be shown only by pointing to specific errors by counsel.). We have held that fear of the death penalty is a valid basis for a voluntary and intelligent plea of guilty, regardless of whether the plea results from the certainty or the probability of a lesser penalty. Mitchell v. State, 271 Ark. 512, 525, 609 S.W.2d 333, 339 (1980). Despite True‘s assertions that the prosecutor had not declared an intent to seek the death penalty and his additional allegations that he has no recollection of committing the crime, the circumstances surrounding the death of the victim and her unborn child support trial counsel‘s reasonable belief that True faced a potential death sentence. The trial court did not clearly err when it found that True‘s guilty plea was voluntarily and intelligently entered upon the advice of competent counsel. Herred, 332 Ark. at 251, 964 S.W.2d at 397.
Affirmed.
JOHN DAN KEMP
Chief Justice