Tonya D. Price v. State of Arkansas

Cite as 2022 Ark. App. 104
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-21-442

TONYA D. PRICE Opinion Delivered March 2, 2022
APPELLANT
APPEAL FROM THE LONOKE
COUNTY CIRCUIT COURT
V. [NOS. 43CR-19-237, 43CR-20-69 &
43CR-20-289]
STATE OF ARKANSAS
APPELLEE HONORABLE BARBARA ELMORE,
JUDGE

AFFIRMED IN PART; REMANDED IN
PART

STEPHANIE POTTER BARRETT, Judge

Appellant Tonya Price appeals the Lonoke County Circuit Court’s order denying her

Rule 37 petition for postconviction relief in three separate cases: Nos. 43CR19-237, 43CR-

20-69, and 43CR-20-289. Price argues that the circuit court clearly erred by summarily

denying her petitions without a hearing. Specifically, she contends that a hearing is necessary

to challenge her counsel’s advice to her to plead guilty, challenge the excessive thirty-year

sentence she received as a result of pleading guilty, and determine whether such challenge

entitled her to Rule 37 postconviction relief. She also asserts that she was given an illegal

sentence in case No. 43CR-19-237 and that the circuit court did not have jurisdiction to

revoke her probation in case No. 43CR-20-69. The State concedes, and we agree, that Price
received an illegal sentence in case No. 43CR-20-237. We reverse and remand to correct

that illegal sentence, but we affirm on Price’s remaining points.

On March 6, 2020, Price pleaded guilty in case No. 43CR-19-237 to possession of

methamphetamine or cocaine with intent to deliver, less than two grams, a Class C felony;

use or possession of paraphernalia to manufacture methamphetamine, a Class B felony;

possession of a controlled substance, methamphetamine or cocaine, a Class B felony; and

obstructing governmental operations, a Class C misdemeanor. She was placed on six years’

probation. Price pleaded guilty on March 6 in case No. 43CR-20-69 to possession of drug

paraphernalia, a Class D felony. While the sentencing order in that case does not reflect a

specific probationary sentence, the order noted that she was assigned to probation; that the

conditions of probation were attached, which indicated she was placed on probation for a

period of six years; and that Price was to give a DNA sample at probation. Her guilty-plea

agreement also noted that she accepted the prosecutor’s offer of six years’ supervised

probation upon pleading guilty. On April 9, 2020, Price was arrested on a new charge in case

No. 43CR-20-289 for possessing between two and ten grams of methamphetamine, a Class

B felony, and she was charged as a large habitual offender, having previously been convicted

of four or more felonies.

On May 4, 2020, the State filed a petition to revoke Price’s probation in both case

Nos. 43CR-19-237 and 43CR-20-69; the petition was amended on October 23 to add further

violations. On November 3, Price pleaded guilty to violating the terms of her probation in

both probation cases and pleaded guilty to the new charge pursuant to plea agreement signed

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by Price, her attorney, and the prosecutor, which stated that there was no agreement on

punishment and that Price understood that the court may set punishment up to the

maximum amount. A presentencing report was ordered, and sentencing was held on

December 7, 2020. The presentence report prepared by the probation department

recommended thirty years’ imprisonment. The prosecutor and the defense attorney verbally

agreed at the sentencing hearing, although not stated in the signed plea agreement, that the

State was recommending five years in the Arkansas Department of Correction with two years

suspended and a judicial transfer to the Community Correction Center for drug treatment.

However, the circuit court rejected the recommendation of the prosecutor and agreed with

the recommendation of the presentence report. In case No. 43CR-19-237, when Price’s

probation was revoked for possession of methamphetamine with intent to deliver, less than

two grams, a Class C felony, she was sentenced to twenty years’ imprisonment. In case No.

43CR-20-69, Price was sentenced to six years’ imprisonment for possession of drug

paraphernalia. On March 24, 2021, amended sentencing orders were entered in both cases

that reduced the sentence in case No. 43CR-19-237 to fifteen years and reduced the sentence

in case No. 43CR-20-69 to five years. In case No. 43CR-20-289, charged as a habitual

offender for possessing between two and ten grams of methamphetamine, she was sentenced

to thirty years’ imprisonment.

Price filed separate Rule 37 petitions for each case on March 8, 2021. In case No.

43CR-19-237, she asserted that she would not have pleaded guilty but for trial counsel’s

erroneous advice that the State would recommend a sentence of five years in a community

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correction center, with two years suspended, but the presentence report prepared by the

probation department recommended thirty years’ imprisonment, and the circuit court

followed that recommendation and not the recommendation of the State. Price also alleged

she received an illegal twenty-year sentence for the Class C felony possession of a controlled

substance with purpose to deliver, less than two grams, because the maximum sentence she

could receive was ten years’ imprisonment and that the sentence was unconstitutionally

excessive because it exceeded sentences of similarly situated defendants. In case No. 43CR-

20-69, Price alleged trial counsel was ineffective for failing to move to dismiss the probation

revocation for lack of jurisdiction and for failing to advise her of the potential jurisdictional

defense available to her. In case No. 43CR-20-289, Price asserts again that she would not

have pleaded guilty but for counsel’s erroneous advice and that the sentence was

unconstitutionally excessive in light of the sentences received by similarly situated

defendants.

On April 17, 2021, the circuit court entered an order dismissing Price’s Rule 37

petitions without a hearing, finding that Price had been advised she had been charged as a

“large” habitual offender in case No. 43CR-20-269, and she could receive a sentence of up

to forty years’ imprisonment and a fine up to $15,000. The circuit court further found that

Price told the court she understood she was pleading guilty for no reason other than she was

guilty and that no one had made any promises to her to induce her to plea. The circuit court

sentenced Price to the presentence-report recommendation of thirty years’ imprisonment

because Price was a “large” habitual offender with a Class B felony, she had two revocation

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probations, and she had not previously been successful in probation, drug court, or the

community correction center.

We do not reverse the denial of postconviction relief unless the circuit court’s

findings are clearly erroneous. Slater v. State, 2017 Ark. App. 499, 533 S.W.3d 84. A finding

is clearly erroneous when, although there is evidence to support it, after reviewing the entire

evidence, we are left with the definite and firm conviction that a mistake has been

committed. Id. In making a determination of a claim of ineffective assistance of counsel,

this court considers the totality of the evidence. Id.

Our supreme court set forth our standard for ineffective-assistance-of-counsel claims

in Lee v. State, 2017 Ark. 337, at 10–11, 532 S.W.3d 43, 53–54:

[O]ur standard for ineffective-assistance-of-counsel claims is the two-prong analysis set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Rasul v. State, 2015 Ark. 118,
458 S.W.3d 722. The benchmark for judging a claim of ineffective assistance of
counsel must be “whether counsel’s conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686. To prevail on a claim of ineffective assistance of
counsel, the petitioner must show that (1) counsel’s performance was deficient and
(2) the deficient performance prejudiced his defense. Mister v. State, 2014 Ark. 446.
Unless a petitioner makes both showings, the allegations do not meet the benchmark
on review for granting relief on a claim of ineffective assistance. Houghton v. State,
2015 Ark. 252, 464 S.W.3d 922.

Counsel is presumed effective, and allegations without factual substantiation
are insufficient to overcome that presumption. Henington v. State, 2012 Ark. 181, 403
S.W.3d 55. To satisfy the first prong of the Strickland test, the petitioner must show
that counsel’s performance was deficient by a showing that counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed the petitioner
by the Sixth Amendment to the United States Constitution. Van Winkle [v. State],
2016 Ark. 98, at 6–7, 486 S.W.3d at 784. A petitioner has the burden of overcoming
the presumption that counsel is effective by identifying specific acts and omissions
that, when viewed from counsel’s perspective at the time of trial, could not have been

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the result of reasonable professional judgment. Henington, 2012 Ark. 181, 403 S.W.3d
55.

To satisfy the second prong of the test, a claimant must show that there is a
reasonable probability that the fact-finder’s decision would have been different absent
counsel’s errors. Van Winkle, 2016 Ark. 98, at 7, 486 S.W.3d at 785. A reasonable
probability is a probability sufficient to undermine confidence in the outcome of the
trial. Id. The language, “the outcome of the trial,” refers not only to the finding of
guilt or innocence, but also to possible prejudice in the sentencing. Id. An appellant
must do more than allege prejudice; he or she must demonstrate it with facts. Carter
v. State, 2015 Ark. 166, 460 S.W.3d 781.

Price first argues that the circuit court erred in summarily denying her Rule 37

petitions without a hearing, particularly as to her ineffective-assistance and excessive-

sentencing claims common to case Nos. 43CR-19-237 and 43CR-20-289. She asserts that a

hearing was required to take evidence to evaluate whether counsel deficiently advised Price

to plead guilty, whether she was prejudiced by the later recommended and imposed excessive

sentence, and whether either circumstance supported Rule 37 relief. She argues that the

presentencing-report recommendation adopted by the circuit court was far greater than the

expectation on which the plea recommendation was founded, and she had been “deficiently

and prejudicially advised to plead guilty.” She claims that “simply looking to the plea hearing

of November 4, 2020, as the circuit court did, hardly could be conclusive on the claims made

about the sentence recommended and delivered thereafter, founded on a PSR submitted on

December 4, 2020, days before sentencing.”

Where the circuit court concludes, without a hearing, that the petitioner is not

entitled to relief, Arkansas Rule of Criminal Procedure 37.3(a) requires the circuit court to

make written findings specifying the parts of the record that form the basis for its decision.

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Britt v. State, 2022 Ark. App. 58, ___ S.W.3d ___. The circuit court made written findings

in this case specifying the basis for its decision.

We cannot agree with Price’s claim that a hearing was required to determine whether

her counsel was ineffective in advising her to plead guilty. Her guilty-plea agreements

expressly stated that no promises or agreements had been made regarding punishment,

including the length of imprisonment or probation, and that she understood that the court

could set punishment up to the maximum authorized. Her guilty-plea agreement in case No.

43CR-20-289 explicitly set forth that the punishment range for a Class B felony possession

of methamphetamine or cocaine with purpose to deliver as a large habitual offender was five

to forty years and up to a $15,000 fine. The plea agreement stated that if the court did not

accept the plea agreement, the guilty plea would be withdrawn. However, absent an

agreement on punishment, there were no terms of the agreement that were rejected by the

court leaving no cause to withdraw the guilty plea. The circuit court followed the

presentencing report’s recommendation, noting that Price had already been to community

correction and had been on probation. Price’s guilty-plea agreements clearly expressed that

no promises had been made as to punishment, and she was fully aware that she could be

sentenced to up to forty years’ imprisonment. We hold that Price’s counsel was not

ineffective for advising her to plead guilty, and the circuit court’s decision to not hold a

hearing was not clearly erroneous.

Price next argues that she was improperly sentenced in case No. 43CR-19-237 to more

than the maximum of ten years on the Class C felony charge of possession of

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methamphetamine with intent to deliver. The State concedes error, and we agree she was

improperly sentenced in this matter. Price was originally placed on six years’ probation in

exchange for her guilty plea to this Class C felony. After she pleaded guilty to violating her

probation and a presentence report was prepared, she was erroneously sentenced to twenty

years’ imprisonment, which was ultimately reduced to fifteen years’ imprisonment in an

amended sentencing order filed on March 24, 2021. Possession of methamphetamine with

intent to deliver in an amount of two grams or less is a Class C felony; the maximum sentence

for a Class C felony is ten years’ imprisonment. Ark. Code Ann. § 5-4-401(a)(4) (Repl. 2013)

(Class C felony range); § 5-64-420(b)(1) (Supp. 2021) (penalty provision). An illegal sentence

may be raised at any time; a sentence is illegal on its face when it exceeds the statutory

maximum for the offense for which the defendant was convicted. Ward v. Kelley, 2016 Ark.

471, 506 S.W.3d 224. The State concedes Price was sentenced to more than the maximum

allowed for a Class C felony, and we remand this issue to the circuit court for correction to

a sentence of no more than ten years.

Last, Price asserts that the circuit court did not have jurisdiction to revoke probation

in case No. 43CR-20-69 because the sentencing order did not reflect a period of time of

probation; therefore, when the State sought to revoke her probation in that case, the

probationary period of zero months had necessarily expired. Price argues that probation

generally may not be revoked after expiration of the probationary period. See Ark. Code

Ann. § 16-93-308 (Supp. 2021). In support of her argument, Price cites Ransom v. State, 2019

Ark. App. 563, 591 S.W.3d 359, for the proposition that the March 2020 sentencing-order

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error is jurisdictional and not amenable to a claim of scrivener’s error. In Ransom, the

defendant violated the terms and conditions of his probation, and a March 23, 2015 order

sentenced him to thirty days in jail. In 2017, the State sought to revoke his probation on

the basis of the 2015 judgment, but that judgment reflected only that Ransom had been

sentenced to jail for thirty days. This court reversed the probation revocation, holding that

“having looked within the four corners of the March 2015 judgment and having read the

plain language within, the circuit court revoked Ransom’s probation and sentenced him to

jail as punishment for violating his probation’s terms. The judgment does not extend

probation as punishment for a violation. It could have done so, but it did not.” 2019 Ark.

App. 563, at 6–7, 591 S.W.3d. at 363.

We hold that the present case is distinguishable from Ransom. Here, while the specific

length of probation was not included in the order, the four corners of the order itself indicate

that Price was assigned to probation; that she was to have a DNA sample drawn at probation;

and that the conditions of probation, which indicated Price had been placed on probation

for six years, were attached to the order. Unlike Ransom, the order is not devoid of any

indication that Price had been placed on probation. It would be unnecessary to have terms

and conditions of probation if Price had been sentenced to zero months of probation. The

circuit court had jurisdiction to revoke Price’s probation in this case.

Affirmed in part; remanded in part.

VIRDEN and GRUBER, JJ., agree.

David R. Raupp, Public Defender Commission, for appellant.

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Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Sr. Ass’t Att’y Gen., for appellee.

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