David Charles Raupers, pro se appellant. Leslie Rutledge, Att'y Gen., by: Jason Michael Johnson, Ass't Att'y Gen., for appellee.
APPEAL FROM THE CARROLL COUNTY CIRCUIT COURT, WESTERN DISTRICT
[NO. 08WCR-16-42] HONORABLE SCOTT JACKSON, JUDGE AFFIRMED RAYMOND R. ABRAMSON, Judge
David Raupers appeals the order of the Carroll County Circuit Court denying his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37. We affirm.
Following a collision that resulted in the deaths of motorcyclists Marquita and David Magee on June 18, 2016, the State charged Raupers with two counts of negligent-homicide, four counts of aggravated assault, one count of driving while intoxicated, and one count of driving left of center. On February 24, 2017, Raupers pled guilty to all charges. On March 27, 2017, the circuit court sentenced Raupers to (1) two consecutive fifteen-year terms of imprisonment for the two counts of negligent-homicide, (2) a six-year term of imprisonment for the four counts of aggravated assault to run concurrently with the negligent-homicide sentences, (3) a one-year jail sentence for driving while intoxicated, and (4) a thirty-day jail sentence for driving left of center.
On June 26, 2017, Raupers filed in the circuit court a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37. He alleged that his trial counsel was ineffective for failing to: (1) investigate Raupers's claim that he was not intoxicated, (2) investigate Raupers's claim that he was denied medical treatment, (3) investigate Raupers's medical health, (4) investigate Raupers's mental competency, (5) properly advise Raupers about his felony charges and their respective penalties, and (6) investigate or defend against Raupers's criminal charges. As the final point argued in his petition, he challenged the circuit court's jurisdiction based on the lack of a grand jury indictment.
Without an evidentiary hearing, the circuit court entered its order on October 27, 2017, denying Raupers's petition. On November 16, 2017, Raupers appealed the decision to this court.
This court will not reverse the circuit court's decision granting or denying postconviction relief unless it is clearly erroneous. Mancia v. State, 2015 Ark. 115, at 4, 459 S.W.3d 259, 264. 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. at 4, 459 S.W.3d at 264.
On appeal from the denial of a Rule 37 petition following a guilty plea, there are only two issues for review—(1) whether the plea of guilty was intelligently and voluntarily entered, (2) whether the plea was made on the advice of competent counsel. Id. at 11, 459 S.W.3d at 267. Further, the Strickland "cause and prejudice" standard applies to claims of ineffective assistance of counsel in cases involving guilty pleas. Id. at 5, 459 S.W.3d at 264.
To determine whether a plea was made on the advice of competent counsel, an appellant must demonstrate that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense to the extent that the appellant was deprived of a fair proceeding. Osburn v. State, 2018 Ark. App. 97, at 2-3, 538 S.W.3d 258, 260-61; Blackwell v. State, 2017 Ark. App. 248, at 3, 520 S.W.3d 294, 298.
An appellant claiming ineffective assistance of counsel must first show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed to the appellant by the Sixth Amendment to the United States Constitution or, else, it is presumed that counsel's conduct falls within the wide range of reasonable professional assistance. Blackwell, 2017 Ark. App. 248, at 3, 520 S.W.3d at 298. Secondly, prejudice is established by demonstrating that there is a reasonable probability that, but for counsel's errors, appellant would not have pled guilty and would have insisted on going to trial. Osburn, 2018 Ark. App. 97, at 3-4, 538 S.W.3d at 261. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Id. at 3, 538 S.W.3d at 261; Blackwell, 2017 Ark. App. 248, at 4, 520 S.W.3d at 298.
An appellant must satisfy both prongs of the test, and it is unnecessary to examine both components of the inquiry if the appellant fails to satisfy either requirement. Blackwell, 2017 Ark. App. 248, at 3, 520 S.W.3d at 298. Conclusory statements that counsel was ineffective cannot be the basis for postconviction relief. Id. at 3, 538 S.W.3d at 261.
On appeal, Raupers first argues that his trial counsel was ineffective for failing to investigate Raupers's claim that he was not intoxicated. For support, he alleges that his blood should have been tested by a neutral medical professional at the hospital, which would have proved that he was not intoxicated. Under his first point on appeal, he further argues that he "could not be convicted of both negligent homicide and driving while intoxicated since driving while intoxicated had to be proven in order to established [sic] he had committed negligent homicide under felony class B classification." He states that an investigation would have revealed certain exculpatory evidence proving his innocence, would have demonstrated that he was subject to a heart attack and blackout, and would have shown that he lacked the required intent for his crimes. He claims that an investigation would have resulted in a more favorable outcome for him, assuming he had pursued trial.
We hold that the circuit court did not clearly err in finding that Raupers was not entitled to postconviction relief under this claim. Absent specific acts or omissions committed by trial counsel, Raupers's allegations are abstract, hypothetical, and conclusory in nature, which cannot serve as the basis for postconviction relief. Engstrom v. State, 2016 Ark. 45, at 4, 481 S.W.3d 435, 439. Moreover, the Arkansas Supreme Court has held that "[a]n appellant who has pleaded guilty normally will have considerable difficulty in proving any prejudice as [the] plea rests upon [an] admission in open court that [appellant] [committed] the act with which [he] was charged." Jamett v. State,