                                   Cite as 2017 Ark. 323
                SUPREME COURT OF ARKANSAS
                                       No.   CR-16-983


                                                Opinion Delivered November   30, 2017
 DOUGLAS DAVID TRUE
                   APPELLANT
                                                PRO SE APPEAL FROM THE
 V.                                             SEBASTIAN COUNTY CIRCUIT
                                                COURT, FORT SMITH DISTRICT
 STATE OF ARKANSAS                              [NO. 66FCR-14-684A]
                                APPELLEE
                                                HONORABLE STEPHEN TABOR,
                                                JUDGE

                                                AFFIRMED.


                              JOHN DAN KEMP, Chief Justice

       Appellant Douglas David True appeals from the denial of his pro se petition for

postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1 (2014),

which alleged the following grounds for relief: that counsel failed to fully investigate and

develop a theory of defense and instead pressured him to plead guilty to capital murder to

avoid the imposition of the death penalty; that counsel failed to order a mental evaluation;

and that his guilty plea was involuntary in that, at the time the plea was entered, counsel did

not inform him that the prosecutor had not yet given notice of intent to seek the death

penalty. We will not reverse the trial court’s findings granting or denying postconviction

relief absent clear error. State v. Herred, 332 Ark. 241, 251, 964 S.W.2d 391, 397 (1998).

A finding is clearly erroneous when, although there is evidence to support it, the appellate

court, after reviewing the totality of the evidence, is left with the definite and firm

conviction that a mistake has been committed. Polivka v. State, 2010 Ark. 152, at 4, 362
S.W.3d 918, 923. Based on a review of the evidence and the findings of the trial court,

there is no showing that the trial court clearly erred when it denied relief. We therefore

affirm.

          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



          1
        True’s postconviction counsel did not file an amended Rule 37.1 petition but relied
on the allegations set forth in True’s pro se petition.


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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.

       At the postconviction hearing, True’s trial counsel testified that he had reviewed the

evidence against True and spoke to True’s family members; that he had begun gathering

evidence of True’s social history, which included obtaining school and military records for

the purpose of developing grounds for mitigation; and that he had hired an investigator to

interview and subpoena necessary witnesses for the defense. True’s trial counsel confirmed

that, at the time he advised True to plead guilty to capital murder, there had been no formal

notice of an intent to seek the death penalty.

       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




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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 (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




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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 (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)).

       Here, True first alleges that his trial counsel was ineffective for failing to investigate

the case and any affirmative defense based on mental disease or defect but instead solely

encouraged him to plead guilty. At the hearing, counsel testified as to the substantial steps

he took to investigate, and we cannot say the court was clearly erroneous in finding counsel

was not ineffective in this regard. In fact, True later testified that he now realized counsel

did investigate,




                                               5
       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. Ark. Code Ann. § 5-2-312(a) (Repl. 2006). The conclusions

presented in the mental evaluation ordered by the trial court in the postconviction

proceeding established that it was unlikely that a more thorough investigation of True’s

mental-health history would have produced sufficient evidence supporting an affirmative

defense or would have eliminated True’s exposure to a possible death sentence. Trial counsel

also testified that he did obtain True’s military records.       Therefore, True does not

demonstrate that he was prejudiced by trial counsel’s failure to pursue this line of inquiry.

       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 Ark. Code Ann. § 5-4-615 (Repl. 2006) and § 5-10-101 (Supp. 2013). A

defendant may be charged and convicted of capital murder when the death of a victim was




                                              6
the result of premeditated and deliberate intent, or when the defendant knowingly causes

the death of a victim younger than fourteen years old under circumstances manifesting

extreme indifference to the value of human life. Ark. Code Ann. § 5-10-101(a)(4) &

(a)(9)(A). We have held that the choice of which charges to file against an accused and the

decision to seek the death penalty are matters that are entirely within the discretion of the

prosecutor. Simpson v. State, 339 Ark. 467, 471, 6 S.W.3d 104, 107 (1999). As stated above,

True confirmed that his girlfriend had been beaten as well as stabbed eleven times, which

resulted in her death and the death of her unborn child. Although True asserted that he

had blacked out and had no recollection of harming his girlfriend, voluntary intoxication

does not negate criminal intent.2 Ark. Code Ann. § 5-2-207 (Repl. 2006); see also Spohn v.

State, 310 Ark. 500, 502, 837 S.W.2d 873, 874 (1992) (testimony from expert describing

alcoholic blackouts was irrelevant and inadmissible in murder trial as voluntary intoxication

is no longer a defense). Although True has no recollection of the events leading to his

girlfriend’s death, intent can be inferred from the nature and extent of the injuries that

caused her death. Camargo v. State, 327 Ark. 631, 638, 940 S.W.2d 464, 467–68 (1997).

In view of this, sufficient evidence supported the prosecutor’s decision to charge True with

two counts of capital murder, which carried the possibility of a death sentence.



       2
         Arkansas Code Annotated section 5-4-605(3) includes intoxication as a mitigating
factor to be considered by the jury during sentencing. Nevertheless, it is entirely up to the
jury to weigh aggravating or mitigating factors in its decision to sentence a defendant to
death. See Williams v. State, 369 Ark. 104, 115, 251 S.W.3d 290, 298 (2007).


                                             7
       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.            Ark. Code Ann. § 5-4-608.

Furthermore, Arkansas Code Annotated section 16-87-205 (Repl. 2005) states in pertinent

part that in capital-murder cases, unless the prosecuting attorney informs the circuit court at

the arraignment of the defendant that the death penalty will not be sought, it shall be

presumed that the death penalty will be sought. Here, no evidence or testimony was

introduced to establish that the death penalty had been waived by the prosecutor, and public

defenders are required to presume the death penalty will be sought unless the prosecutor

indicates otherwise. Ark. Code Ann. § 16-87-205.

        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




                                              8
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.

       Douglas D. True, pro se appellant.

       Leslie Rutledge, Att’y Gen., by: Amanda Jegley, Ass’t Att’y Gen., for appellee.




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