                                      Cite as 2016 Ark. 85


                    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
                                     Cite as 2016 Ark. 85



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.




                                                2
                                      Cite as 2016 Ark. 85



        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


                                                 3
                                     Cite as 2016 Ark. 85



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.


                                               4
                                     Cite as 2016 Ark. 85



        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


                                               5
                                    Cite as 2016 Ark. 85



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


                                               6
                                    Cite as 2016 Ark. 85



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


                                               7
                                    Cite as 2016 Ark. 85



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.




                                               8
