                                       Cite as 2014 Ark. 289

                   SUPREME COURT OF ARKANSAS
                                          No.   CR-12-1044

ANTONIO C. ROBINSON                                   Opinion Delivered   June 19, 2014
                                  APPELLANT
                                                      PRO SE PETITION TO AMEND
V.                                                    INFORMATION AND STAY OF
                                                      PROCEEDINGS
                                                      [ASHLEY COUNTY CIRCUIT COURT,
STATE OF ARKANSAS                                     NO. 02CR-10-91]
                                    APPELLEE
                                                      HONORABLE DON GLOVER, JUDGE

                                                      APPEAL DISMISSED; PETITION
                                                      MOOT.


                                          PER CURIAM


       In 2011, appellant Antonio C. Robinson entered a negotiated plea of guilty in the Ashley

County Circuit Court to the charges of first-degree murder and possession of firearms by a

certain person, and he was sentenced as a habitual offender to an aggregate term of 420 months’

imprisonment. Appellant subsequently filed a timely, verified pro se petition for postconviction

relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011), as well as an amended Rule

37.1 petition. Having considered the claims raised in both the original petition and the amended

petition, the circuit court denied relief without a hearing,1 and appellant timely lodged an appeal


       1
         Arkansas Rule of Criminal Procedure 37.3(c) provides that an evidentiary hearing should
be held in postconviction proceedings unless the files and record of the case conclusively show
that the prisoner is entitled to no relief. Eason v. State, 2011 Ark. 352 (per curiam); Hayes v. State,
2011 Ark. 327, 383 S.W.3d 824 (per curiam). Where the circuit court dismisses a Rule 37.1
petition without an evidentiary hearing, it “shall make written findings to that effect, specifying
any parts of the files, or records that are relied upon to sustain the court’s findings.” Ark. R.
Crim. P. 37.3(a); see Eason, 2011 Ark. 352. In the instant case, the circuit court’s order denying
postconviction relief complies with the requirements of Rule 37.3.
                                      Cite as 2014 Ark. 289

of the order in this court.

       Now before us is appellant’s pro se petition to amend information and for stay of

proceedings in which he seeks to amend the Rule 37.1 petition filed below by attaching copies

of two statutes pertaining to the justification defense to murder. Appellant also seeks a stay of

the appellate proceedings to allow the court to “vigorously examine and present, if available,

potential claims of ineffective assistance.” We need not consider the merits of the petition

because it is clear from the face of the record that appellant could not prevail on appeal even if

the petition were granted. An appeal from an order that denied a petition for postconviction

relief will not be allowed to proceed where it is clear that the appellant could not prevail.

Holliday v. State, 2013 Ark. 47 (per curiam); Bates v. State, 2012 Ark. 394 (per curiam); Martin v.

State, 2012 Ark. 312 (per curiam). Accordingly, the appeal is dismissed, and the petition is moot.

       The burden is on the petitioner to prove his allegations for postconviction relief. Heard

v. State, 2012 Ark. 67 (per curiam). We do not reverse a denial of postconviction relief unless

the circuit court’s findings are clearly erroneous. Id. 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 committed. Id.

       With the exception of claims that present an indirect attack on the judgment or that allege

fundamental error relating to a separate sentencing proceeding, cognizable claims pursuant to

Rule 37.1 where a defendant pleads guilty are limited to those asserting that the petitioner’s plea

was not entered intelligently and voluntarily upon advice of competent counsel. Id. (citing

Sandoval-Vega v. State, 2011 Ark. 393, 384 S.W.3d 508 (per curiam)). We assess the effectiveness



                                                2
                                      Cite as 2014 Ark. 289

of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Hickey

v. State, 2013 Ark. 237, ___ S.W.3d ___ (per curiam). Under the two-prong Strickland test, a

petitioner raising a claim of ineffective assistance of counsel must show that counsel’s

performance fell below an objective standard of reasonableness and that counsel’s deficient

performance so prejudiced the petitioner’s defense that he or she was deprived of a fair trial.

Holloway v. State, 2013 Ark. 140, ___ S.W.3d ___; Dansby v. State, 347 Ark. 674, 66 S.W.3d 585

(2002). To establish prejudice and prove that he was deprived of a fair trial due to ineffective

assistance of counsel, a petitioner who has entered a plea of guilty must demonstrate a

reasonable probability that, but for counsel’s errors, he would not have entered a guilty plea and

would have insisted on going to trial. Scott v. State, 2012 Ark. 199, 406 S.W.3d 1. A petitioner

who has entered a guilty plea normally will have considerable difficulty proving any prejudice,

as the plea rests upon an admission in open court that the petitioner did the act charged. Id. A

petitioner under Rule 37.1 must allege some direct correlation between counsel’s deficient

behavior and the decision to enter the plea. Id.

       In the Rule 37.1 petition, appellant alleged that counsel was ineffective for the following

reasons: counsel advised appellant that a guilty plea would be in his best interest and told

appellant that he would receive concurrent sentences if he entered a plea of guilty to the charge

of first-degree murder; counsel did not allow appellant to review any recordings or statements

made by witnesses; counsel did not establish an attorney-client relationship with appellant;

counsel refused to move for a change in venue; counsel refused to provide appellant with a copy

of the discovery motion; counsel refused to argue that appellant’s due-process rights were



                                                3
                                       Cite as 2014 Ark. 289

violated by law enforcement officers. Appellant also argued in a conclusory fashion that his plea

was coerced because counsel told him that he would not receive a fair trial. In the amended

petition, appellant asserted that, while awaiting trial, counsel informed him of a possible plea deal

wherein appellant would receive twenty years’ imprisonment for a guilty plea to second-degree

murder but that appellant refused that offer because counsel assured him that he could get a

better deal. Finally, appellant contended that counsel did not inform him that he could be

sentenced as a habitual offender. Nowhere in the petition or amended petition does appellant

allege that, but for counsel’s ineffective assistance, he would not have entered the negotiated plea

of guilty.

        In its order denying relief, the circuit court found that appellant had entered the plea

voluntarily and intelligently. The court further found that, at the plea hearing, appellant

acknowledged that he was a habitual offender prior to entering the plea; stated that no other

promises had been made to him other than what was recommended in his plea; acknowledged

the sentencing ranges for the charged offenses and stated that he understood that he would be

subjected to a possible sentence of life and forty years for the charges, respectively; and

acknowledged that he understood that, because of his status as a habitual offender, he would be

eligible for parole only after serving 70% of his sentence. The court also noted that appellant

stated in open court that he had no complaints regarding counsel’s performance.

        The circuit court’s findings are correctly reflected in the record. The record also reflects

that appellant denied any coercion in entering the plea and stated that he believed that the State

could meet its burden of proof on both charges if the case proceeded to trial, including the



                                                 4
                                      Cite as 2014 Ark. 289

habitual-offender enhancement. After the court announced appellant’s sentence as 420 months’

imprisonment for each charge to run concurrently, appellant stated that the sentence as entered

reflected his understanding of the plea and that no other promises had been made to him.

       Because the allegations raised by appellant in the petition and the amended petition were

conclusory and failed to establish any correlation between the alleged ineffectiveness of counsel

and appellant’s decision to enter the plea, appellant failed to meet his burden of proving

prejudice from any deficient performance on the part of trial counsel. See Thompson v. State, 2013

Ark. 179 (per curiam) (“Conclusory statements cannot be the basis of postconviction relief.”).

Accordingly, if permitted to proceed, appellant could not prevail on appeal as the circuit court’s

order is not clearly erroneous, and we therefore dismiss the appeal.

       Appeal dismissed; petition moot.

       Antonio C. Robinson, pro se appellant.

       Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.




                                                5
