SanDoval–Vega v. State

• Decision Date: 29 September 2011
• Docket Number: No. CR 09–389.,CR 09–389.
• Citation: 384 S.W.3d 508,2011 Ark. 393
• Parties: Serafin SANDOVAL–VEGA, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2011 Ark. 393

384 S.W.3d 508

Serafin SANDOVAL–VEGA, Appellant

v.STATE of Arkansas, Appellee.

No. CR 09–389.

Supreme Court of Arkansas.

Sept. 29, 2011.

Serafin Sandoval-Vega, pro se appellant.

Dustin McDaniel, Att'y Gen., by: Deborah Nolan Gore, Ass't Att'y Gen., for appellee.

PER CURIAM.

Appellant Serafin Sandoval–Vega entered a guilty plea to capital murder, and the Benton County Circuit Court sentenced him to life imprisonment without parole. Appellant filed a timely, verified petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2011) that was denied without a hearing. On appeal of that order, appellant contends that the trial court should have held a hearing on the petition and that it made a number of other errors regarding his claims for relief. Appellant's petition was clearly without merit, with the exception of one issue that he raised. We accordingly affirm as to the remaining issues and reverse and remand for the trial court to provide written findings in accord with our rules for the single meritorious issue.

Where no hearing is held on a Rule 37.1 petition, the trial court has an obligation to provide written findings that conclusively show that the petitioner is entitled to no relief. Davenport v. State, 2011 Ark. 105, 2011 WL 835180 (per curiam); see alsoArk. R.Crim. P. 37.3. In this case, the court's order did not provide sufficient findings for our review as to some of the issues raised by the petition. This court may affirm the denial of a Rule 37.1 petition, regardless of the adequacy of the order, if we can conclusively determine from the record, or the face of the petition, that the allegations in the petition are without merit. Marks v. State, 2011 Ark. 324, 2011 WL 3930382 (per curiam).

Appellant was to be tried with his codefendant, Manuel Enrique Camacho, who entered a guilty plea on the same charge at the same time as appellant. This court has previously examined the record concerning Mr. Camacho's appeal of the denial of his petition for postconviction relief, and we considered a number of the same claims that appellant raised in his petition. See Camacho v. State, 2011 Ark. 235, 2011 WL 2062328 (per curiam). The basis for appellant's claims in his petition were largely the same as Mr. Camacho's, with some varied arguments. Appellant raised claims that his charges should have been dismissed for a speedy-trial violation, that he was denied counsel because the Mexican consulate was not informed upon his arrest, that he was not found competent to stand trial, that his guilty plea was coerced, that the prosecution withheld evidence, and that his counsel was ineffective. Appellant alleged that counsel was ineffective because he did not perform sufficient investigation, did not provide an interpreter, did not have results from a medical examination entered of record, pressured appellant to accept the plea, and failed to file a motion for dismissal on the basis of a speedy-trial violation.

Appellant's petition raised a number of claims, as did Mr. Camacho's, that were not cognizable because he entered a guilty plea. With the exception of certain issues concerning sentencing, cognizable claims in those circumstances are limited to those asserting that the petitioner's plea was not entered intelligently and voluntarily upon advice of competent counsel. Id.; see also Gonder v. State, 2011 Ark. 248, 382 S.W.3d 674 (per curiam); Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918. Those challenges that are direct challenges and that are not a fundamental claim that would render the judgment void, such as appellant's allegations of a speedy-trial violation and prosecutorial misconduct, are simply not cognizable in any Rule 37.1 proceeding. Camacho v. State, 2011 Ark. 235, at 1, 2011 WL 2062328;see also Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). Appellant's argument concerning consular notification mirrored Mr. Camacho's and, for the same reasons, was likewise a claim of improper notice that should have been raised on direct appeal rather than a denial-of-counsel issue. As a result, the claim did not support postconviction relief.

Appellant's allegations in the petition that he was pressured into his plea, both those raised as a direct challenge and those raised concerning ineffective assistance, did not provide a factual basis that rose to the level of coercion. Appellant complained that his difficulty with the language, the public sentiment toward the case, and his isolation from his family contributed to his decision to take the plea offer. He asserted that counsel told him that he would get the death penalty if he went to trial, described the harsh conditions on death row, pressured his family, and told him that he did not have time to discuss the plea offer with his mother. The pressures that appellant described, however, do not raise to the level of coercion. As further discussed below, appellant was sufficiently fluent in the English language, and neither the difficulties of his situation as described nor his attorney's advising appellant of a potentially unfavorable outcome at trial constitute coercion. See Johnson v. State, 2009 Ark. 541, 2009 WL 3681861 (per curiam).

Appellant also asserted counsel was ineffective for failing to investigate, but the petition did not provide facts concerning evidence or information that counsel could have discovered that raised a reasonable probability that appellant would not have pled guilty. Where the judgment was based on a guilty plea, a petitioner claiming ineffective assistance of counsel must demonstrate prejudice by showing that there was a reasonable probability that, but for counsel's alleged error, the petitioner would not have pled guilty and would have insisted on going to trial. See Jamett v. State, 2010 Ark. 28, 358 S.W.3d 874 (per curiam). 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. Herron v. State, 2011 Ark. 71, 2011 WL 573834 (per curiam). He must allege some direct correlation between counsel's alleged deficient behavior and the decision to enter the plea. Id. Appellant's claims failed to demonstrate the requisite prejudice, because appellant did not demonstrate that counsel would have discovered evidence through further investigation that presented a reasonable probability that appellant would not have entered the plea.

Appellant contended his attorney was ineffective for failing to provide an interpreter. He asserted that he was prejudiced by the absence of an interpreter, and his understanding of the English language played a part in other issues as well. The record, however, does not support that claim.

The trial court took evidence concerning appellant's attendance and performance in public school, including the testimony of a teacher in subjects taught for students with English as a second language. Although the teacher expressed some difficulties that appellant continued to have with the language, appellant tested as having what could be considered as at least a fair level of proficiency and good listening skills, and, by his own admission, he had been in this country for four years. The trial court specifically held at a suppression hearing that appellant understood English. The recording of appellant's statementsupports the court's finding on that point. Moreover, the record indicates that an interpreter was present for at least some hearings and that key documents had been provided in both languages. Appellant did not demonstrate prejudice as to this point.

Appellant's claim of ineffective assistance based upon his allegation that counsel failed to file a motion to dismiss for a speedy-trial violation fails for the same reasons as his codefendant's comparable claim. Appellant did not demonstrate prejudice as to this claim, because he did not establish in his petition that counsel could have filed a successful motion on that basis, and trial counsel cannot be ineffective for failing to make an objection or argument that is without merit. Hayes v. State, 2011 Ark. 327, 383 S.W.3d 824 (per curiam). As we noted in our prior opinion, the record in this case demonstrates excluded periods sufficient for the relevant time, and appellant's petition advanced no arguments upon which counsel might have based a successful motion on that basis. Camacho v. State, 2011 Ark. 235, at 4, 2011 WL 2062328.

Appellant's final claim of ineffective assistance concerns counsel's failure to have a court-ordered mental evaluation entered of record. Appellant did not demonstrate prejudice as to the claim, because he did not provide information concerning the contents of that report or explain how its entry into the record would have changed his decision to enter a plea. He did not demonstrate that the report, regardless of the fact that it was not entered into the record, would have impacted his decision or counsel's recommendation concerning the plea agreement.

The report, however, is also crucial to appellant's claim that he was not competent and should not have been forced to enter a guilty plea as if he had been found competent to proceed. As to that claim, we cannot determine from the record that the claim was without merit. The court provided no ruling on this issue and, therefore, no written findings. The record simply does not provide information that would allow this court to affirm denial of postconviction relief on the issue of whether or not the trial court exceeded its jurisdiction by accepting appellant's plea without a competency hearing. ¹ Unlike the situation in his codefendant's case, in this...