Hansler v. State , 508 S.W.3d 878 ( 2017 )

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SUPREME COURT OF ARKANSAS.
No. CR-16-579
Opinion Delivered January 26, 2017
MICHAEL EDWARD HANSLER
APPELLANT
PRO SE APPEAL FROM THE POPE
V. COUNTY CIRCUIT COURT AND
MOTION FOR DEFAULT JUDGMENT
STATE OF ARKANSAS [58CR-15-516]
APPELLEE HONORABLE WILLIAM M.
PEARSON, JUDGE
AFFIRMED; MOTION MOOT.
PER CURIAM
On January 20, 2016, judgment was entered in the Pope County Circuit Court
reflecting that Michael Edward Hansler had entered a negotiated plea of nolo contendere to
rape for which a sentence of 180 months’ imprisonment was imposed. On April 11, 2016,
Hansler filed in the trial court a timely, verified pro se petition for postconviction relief
pursuant to Arkansas Rule of Criminal Procedure 37.1 (2016) seeking to have the judgment
vacated on the ground that he was not afforded effective assistance of counsel. The trial court
denied the relief sought, and Hansler brings this appeal. Hansler has filed a motion for a
“default judgment” on the grounds that the appellee State was improperly granted extensions
of time to file its brief and that he was entitled to appointment of counsel in the Rule 37.1
proceeding and is entitled to an attorney to represent him on appeal.an attorney to represent
him on appeal.
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We affirm the trial court’s order denying the Rule 37.1 petition. The motion seeking a
default judgment and appointment of counsel is moot. The Rule 37.1 petition filed in the trial
court was devoid of facts to support his claims of ineffective assistance of counsel. Conclusory
statements cannot be the basis for postconviction relief, Anderson v. State, 2011 Ark. 488, 385
S.W.3d 783, and this court will affirm the denial of relief unless the trial court’s findings are
clearly erroneous. Beavers v. State, 2016 Ark. 277, ___ S.W.3d ___. 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.
When a plea of guilty or nolo contendere is entered, the sole issue in postconviction
proceedings is whether the plea was intelligently and voluntarily entered on advice from
competent counsel. See Mancia v. State, 2015 Ark. 115, 459 S.W.3d 259. In his petition, Hansler
raised the following allegations of ineffective assistance of counsel: (1) counsel did not listen
to his protestations that he was innocent of the offense charged and seemed determined to
focus on securing a favorable plea offer from the State; (2) counsel failed to investigate the
case: (3) counsel failed to provide him with all the evidence so that he could determine who
the trial witnesses would be and what evidence had been obtained by the authorities; (4)
counsel was prejudiced against Hansler because Hansler is a Wiccan and counsel advised him
that the jury would consist of Christians who would be biased against him.
It first should be noted that Hansler in his brief in this appeal enlarges on and
embellishes the allegations contained in his Rule 37.1 petition. This court will not consider
the new material contained in the brief. We do not address new arguments raised for the
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first time on appeal or consider factual substantiation added to bolster the allegations made
below. Thornton v. State, 2014 Ark. 113 (per curiam). When reviewing the trial court’s
ruling on a Rule 37.1 petition, the appellant is limited to the scope and nature of the
arguments that he made below that were considered by the trial court in rendering its ruling.
Pedraza v. State, 2016 Ark. 85, 485 S.W.3d 686 (per curiam).
With respect to Hansler’s assertions that counsel failed to investigate his case, did not
discuss the evidence with him, and focused on obtaining a favorable plea bargain, the claims
were not supported by facts to show that Hansler was prejudiced by counsel’s conduct. To
prevail on a claim of ineffective assistance of counsel for failure to investigate or discuss
evidence with the petitioner, 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. See Mancia, 2015 Ark. 115, 459 S.W.3d 259.
Statements without an alleged factual basis do not suffice. Pedraza, 2016 Ark. 85, at 3–4, 485
S.W.3d 686, 690. Hansler did not state any specific information that could have been
discovered with more investigation, could have been brought out if counsel had discussed the
evidence with him more thoroughly, or not focused on plea bargaining such that his decision
to enter a plea would have been changed. Accordingly, he did not show that counsel made
any error. See Sandoval-Vega v. State, 2011 Ark. 393, 384 S.W.3d 508.
Likewise, neither Hansler’s conclusory claim that counsel was prejudiced against him
because of his Wiccan religion nor Hansler’s statement that counsel advised him of the
possibility that a jury might be, or would be, biased against him because of his religion
demonstrated that counsel was incompetent under the Strickland standard. Hansler offered
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no facts to establish that any alleged bias or advice counsel might have given him concerning
the possible religious prejudice of the jury rendered his plea involuntary. By not delineating
the actual prejudice that arose from counsel’s conduct, he failed entirely to show that there
was a direct correlation between counsel’s deficient behavior and his decision to enter the plea.
Scott v. State, 2012 Ark. 199, 406 S.W.3d 100.
Finally, Hansler states in his brief that he is “appealing the fact that Judge Pearson
denied my Rule 37 petition without a hearing.” Pursuant to Rule 37.3(a), the trial court has
the discretion to deny relief under the Rule without a hearing. Sims v. State, 2015 Ark. 363, at
16, 472 S.W.3d 107, 118. The trial court need not hold an evidentiary hearing where it can be
conclusively shown on the record, or the face of the petition itself, that the allegations have
no merit.” Bienemy v. State, 2011 Ark. 320 (per curiam). Because Hansler’s petition lacked
factual support for the claims it contained, we cannot say that the files and records of the case
and the petition itself did not conclusively show that Hansler’s allegations of ineffective
assistance of counsel were not well taken. Therefore, the trial court did not err in denying the
petition without a hearing. See Robinson v. State, 2014 Ark. 310, 439 S.W.3d 32 (per curiam)
(This court may affirm the denial of a Rule 37.1 petition, regardless of the adequacy of the
order, when the allegations in the petition are such that it is conclusive on the face of the
petition that no relief is warranted.).
Affirmed; motion moot.
Michael Edward Hansler, pro se appellant.
Leslie Rutledge, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appellee.
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