*1 233 not charged. is one with which Boren was
The opinion is intent on this conviction majority affirming misleading because “the the document character of disclosure becomes overwhelming ignores It the that the predominate.” fact form used is the one by Boren he is to use federal law. required states, The majority opinion “the customer was deprived essential and information is misled to the as true facts.” point Boren and was tried convicted for a car a rolled selling with back odometer without disclosure. He was convicted violation aof particular criminal law statute not vague some concept misrepresentation.
The effect of the is not the majority opinion only ignore rule that we construe criminal statutes it strictly, ignores in the which provision statute conviction sale permits of a only vehicle with a reading lowered odometer disclosing “without such fact prospective purchasers.” Given the failure of state’s evidence to show sale any was made “without disclosure” the judgment reversed, the trial court should be case dismissed.
I dissent. respectfully Dudley, JJ.,
Purtle
join
opinion.
William
FURR
v. STATE
Henry
Fuhr
of Arkansas
a/k/a
87-42
CR
Supreme Court of Arkansas Opinion delivered December *2 Jeremiah, Hodnett, T. for Pruitt & by: Roger appellant. Miller, Gen., Clark, Clint Gen., Asst. Att’y Steve Att’y by: for appellee. asked to again Justice. we Hays, By appeal
Steele established a was guilty decide whether a factual basis for in the trial court. being
In a felon January appellant guilty pled firearm, and, offender, having of a possession as an habitual an committed as aggravated was tendered robbery. part of a a plea agreement for sentence of with five twenty years years for suspended aggravated and a concurrent sentence robbery five for years possession a At the close the plea firearm. hearing, the circuit the judge accepted pleas imposed sentence proposed by plea agreement. 18, 1986,
On June filed a motion to withdraw the appellant pursuant A.R.Cr.P. Rule 26. The trial pleas court treated the motion as petition relief under post-conviction Rule 37 and scheduled an At evidentiary hearing on petition. *3 the of hearing conclusion the the denied the judge circuit petition and one, has on two of error: at appellant appealed assignments the plea hearing the trial court failed to establish a factual basis and, two, for the pleas appellant received ineffective assistance counsel in that his attorney failed investigate appellant’s defenses, failed to file motions but these errors pretrial would appellant not have We the pled guilty. reject arguments and affirm the denial the petition.
The state does
take
not
issue with the
contention
appellant’s
rather,
that no factual basis
at
was established
the
it
hearing,
plea
argues that a factual basis for the
was shown
guilty
at the
pleas
post-conviction hearing, which under our
any
cases remedies
which
the
deficiency
may
hearing.
have existed at
plea
Snelgrove
State,
116,
v.
292 Ark.
There three entry the of a phases guilty plea: under Rule 24.4 trial the the must address accused judge personally determine that he understands the nature of the charge, sentence, the minimum if the mandatory any, possible sentence, maximum the effect convictions or additional prior or sentence, guilty that by pleading could have on the charges and to a trial jury contendere, waives the right the accused nolo death penalty where the with the witnesses (except be confronted sought). is to determine judge trial the Rule 24.5
Secondly, requires a result of plea is the whether the voluntary, plea that the plea be so, agreement of the and, if that the agreement provisions the address must also judge Rule 24.5 the trial stated. Under force, or threats whether any and determine accused personally guilty the plea. induced agreement, than the plea other promises, do with establish has to hearing of the The third phase basis requires A factual a factual basis for ing plea. fairly judge may which a of sufficient evidence from existence to stand he chose be convicted if conclude that a defendant could Association, Jus Standards For Criminal trial. American Bar established tice, commonly is most No. 14-1.6. A factual basis accused, and an examination of the prosecutor of the inquiry Israel, Criminal J. LaFave and W. presentence report. the trial Rule 24.6 20.4(f) (1984). provides Procedure § “without or nolo contendere will not judge accept plea a factual basis that there is such as will establish making inquiry 24.6, 24.4 and Rule unlike Rule for the Rule plea.” Significantly, 24.5, be addressed no that the accused contains requirement *4 basis for a the factual determining the trial in personally by judge those from in the step procedure guilty plea. By separating accused, the the be directly which must addressed steps the accused only did contemplate framers of the rules not or nolo guilty could a basis for a plea establish factual observes, Indeed, Rule 24.6 contendere. the Commentary as “a conclusion.” legal the existence of a factual basis is an is to prevent basis requirement evident factual purpose the as on the mistaken guilty accused from unwittingly pleading it was not. when in fact that his conduct was unlawful sumption Justice, Association, Criminal See Standards American Bar were criminal rules 14-1.6(a) No. Since our (Commentary). standards, clear that it seems from those patterned adopted be established may the rules that a factual basis contemplate accused, counsel, the prosecutor, either the defense by addressing or all three.
237 State, v. relies on McDaniel Appellant primarily 629, 708 (1986), Ark. S.W.2d 613 we that a factual where stated addressing basis can be established the accused only person by It turned on the well be that the decision in McDaniel ally. may one, fact that rules were and the dictates of these considered as A.R.Cr.P. Rule 24.4 were at largely ignored plea McDaniel’s However, hearing. in in spite language contrary the McDaniel, establishing in the factual basis of defendant’s charge and is single require there no method which the plea, by ment of Rule 24.6 can be achieved. we have no rule that Clearly, the factual basis for a defendant’s be only by must furnished plea the defendant. We have held that the court must ask the defendant if he did things the of which he stands accused is State, pleading he v. guilty. because Smith 291 Ark. However, 725 S.W.2d (1987). Smith the in Rule 24.6 was the requirement bymet the prosecutor reciting underlying facts of the crimes with which defendant charged, the was and the Here, appellant admitting guilt. his the court recounted the charges defendant, and bases of the crimes presence defense counsel and and the defendant prosecutor acknowledged guilt his and described unlawful conduct both orally by signing his agreement. Defendant’s counsel also confirmed in defendant, court and in open of the presence the truthfulness of the That, believe, factual basis recited the court. we entirely suffices.
With clarification, we turn to the attempted proceed- at ings the appellant’s plea hearing. Major from the excerpts follow, hearing with significant underlined: portions
Are you William Fuhr?1 Henry *5 Are Fred of you represented by Mr. Hart the Public Fuhr, spelling appears record uses but it the correct Furr. attorney? Office, your court-appointed
Defender’s MR. FUHR:
Yes, sir.
THE COURT: with the offense 83-203 Case No. charged in
You are firearm, and Felony, a Class “D” in of a of felon possession day of March criminal, the 19th that on a habitual being firearm, feloniously possess a unlawfully and you did of a revolver, having convicted been after a .38 caliber Colt convicted II, been felony. having previously that you Count of commission of the day felonies on the of three or more extended period to an subject are charged felony, the above Ann. Ark. Stat. with in accordance of imprisonment charge felon in of understand 41-1001. Do Section possession firearm? of a
MR. FUHR:
Yes, sir. is a way habitual criminal
Do that you understand it, case, do increasing enhancing in penalty understand that? 83-204, the offense charged are with
In Case No. habitual Felony a Class “Y” aggravated robbery, 1983, you day did criminal, of March that on the 10th immediately unlawfully feloniously em- threaten purpose upon Singleton ploy physical forcé Fletcher deadly committing while armed with a a theft did so been weapon, pistol. having Count II: that you, to wit: a on the day three or more felonies convicted of previously subject charged felony, the above the commission of with an extended of imprisonment accordance period you understand the Do Ark. Stat. Ann. Section 41-1001. *6 aggravated robbery charge and the criminal habitual penalty, would enhance do understand that? MR. FUHR:
Yes, sir.
THE COURT:
Aggravated robbery, Felony, a Class “Y” carries forty years from ten imprisonment, or life do understand that?
MR. FUHR:
Yes.
THE COURT: firearm,
Possession of a a Class “D” Felony, carries up to six years in Department of Correction and to a up Ten both, Thousand Dollar fine or do you understand that? MR. FUHR:
Yes.
THE COURT: Saxon,
Mr. what does habitual criminal do to aggravated robbery, as far as possible penalty?
MR. SAXON:
It increases the minimum.
MR. HART:
(Appellant’s It is attorney): life, twenty sixty to Your Honor.
Do (T. understand 53-54) that?
What does it do firearm, to the felon in possession years? to thirteen
up
MR. HART: twelve, Your Honor.
Six to *7 THE COURT: to six subject that you
Do understand you if the of Correction twelve years Department a ten thousand up is involved habitual criminal be made those could Do understand you dollar fine? made consecutive, is, being instead of together, added concurrent, all that? do understand you MR. FUHR:
Yes, sir.
THE COURT: from six to or life and sixty
So we have twenty fine, understand you do and a ten dollar twelve thousand that?
MR. FUHR:
Yes, sir.
THE COURT: Hart, you both the think he understands
Mr. do charges? possible penalties HART: MR.
Yes, (T. 55) Your Honor.
THE COURT: Fuhr, Mr. a plea
I show two documents here you of the Court respecting statement of and statement sentence, did read and under- partial suspension stand these two documents?
MR. FUHR:
THE COURT:
Any questions about them?
MR. FUHR:
No, sir.
Did sign them?
Yes. Hart,
Mr. do think he understood these two documents?
MR. HART:
Yes, Your Honor.
THE COURT: Fuhr, you
Mr. plead aggravated robbery how do criminal, with you plead? habitual how do MR. FUHR:
Guilty.
THE COURT: possession
Felon in of a firearm with habitual criminal?
MR. FUHR:
Guilty.
THE COURT:
youDo you plead guilty understand that if your right jury waive charge? to a trial on each MR. FUHR:
Yes, (T. sir. 55-56)
THE COURT: your right
That waive be with the confronted testify your testify against you or not and to witnesses charge? behalf each own on MR. FUHR:
Yes, sir.
THE COURT: up your right you give
Do understand give you any might Arkansas appeal I to the sentence appellate courts?
MR. FUHR:
Yes, sir. COURT:
THE plea agreement? your plea aon Is based agreement? your What is FUHR: MR. years suspended? twenty years five
A with sentence of on the rob- Twenty aggravated with five suspended charge? bery
MR. HART:
Yes, that is correct.
THE COURT:
And how of a firearm? much on the felon in possession MR. FUHR:
Five years. (T. 56-57) THE COURT:
Is it are be concurrent? your understanding they MR. FUHR:
Yes, sir.
THE COURT: Fuhr,
Mr. do understand that the does Court not go along agreement have to with if it want does not to? MR. FUHR:
THE COURT: any force, promises against you
Were threats or used get you guilty? to enter this MR. FUHR:
No, sir.
THE COURT:
You were Monday morning set for trial and it is late Friday afternoon, afternoon, almost 5:30 in the sure want to do this?
MR. FUHR:
Yes, sir.
THE COURT: your
You want rights jury to waive Constitutional to a your trial and all rights, other Constitutional is that correct?
Yes. Hart,
Mr. there factual basis for the in both cases?
MR. HART:
Yes, Honor, Your (T. 58) there is.
Mr. Saxon?
MR. SAXON: Honor,
Yes, Your there is. Fuhr, on the based guilty, Mr. on your plea based offenses of the do state the criminal fact that informations firearm, a in aggravated possession and felon robbery an habitual you and since have admitted criminal, the and does find hereby Court can Class “Y” of felon Felony, aggravated robbery, you if firearm, “D” I will of a a Class ask Felony, possession any legal why not be have sentence should reason pronounced at this time?
No, sir. Hart, Furr Mr. agreement, Mr. signed by by following from defense counsel: contained the representation To with the accused. carefully gone I have over paper able all of fully the best of he is to understand my judgment further, the and, his is consistent with ofguilty it facts case. he has related to own the my me and investigation of (Our emphasis). 24.4, as exactly
Thus the trial Rules .5 and .6 court followed provided and accepted agreement imposing precisely the plea the sentences Furr receive. Not did Mr. Furr only Mr. hoped sentence, his given history, receive what be a favorable appears he benefit of of several other got pending the the dismissal was not charges. reject We that a factual basis argument hold court with Rules established and that the trial complied 24.4, .5 and .6. remaining
We need not on is length dwell at A relief seeking sue—ineffective assistance of counsel. petitioner under Rule 37 burden ineffective assumes a difficult where show, is, one, assistance is alleged, that must petitioner objective counsel’s below an standard representation fell and, two, reasonableness that there is a reasonable probability
245 errors, of the that but for counsel’s the result unprofessional would Strickland v. 466 Washington, be different. proceeding (1984). U.S. 668 has to
The Strickland standard
been made applicable
challenges
based on
guilty
ineffective assistance
pleas
Lockhart,
v.
(1982),
counsel in Hill
Where the error of counsel failure alleged is a to investi- gate evidence, or discover potentially exculpatory determination whether the error the defend- “prejudiced” ant causing him to plead guilty rather than to trial go will depend likelihood that of the upon discovery evidence would change have led counsel to his recommen- turn, assessment, dation as to the This will plea. depend in large on a part whether the evidence prediction likely would have changed the Hill outcome of a trial. v. Lockhart, 52, 474 (1985). U.S. 59
In the case before us
appellant alleges
1)
counsel:
failed to
investigate
defenses,
all
fully
available
failed
2)
witnesses,
question certain
3)
motions,
failed
file
4)
pre-trial
failed to confer with appellant
enough,
5)
often
and was inexperi
However,
enced.
fails
appellant
what new evidence
specify
or
matter further investigation would have
change
uncovered to
his
or how
plea,
additional
motions
pre-trial
could have
produced
different result. The allegations are
wholly conclusory
will
not, therefore, sustain a claim of ineffective assistance of counsel.
State,
Ross v.
663,
292 Ark.
732
(1987);
S.W.2d 143
Pride v.
State,
89,
285 Ark.
AFFIRMED. J., J., J.,
Purtle,
Dudley,
Newbern,
dissent.
Justice,
In
v.
dissenting.
H.
McDaniel
Dudley,
Robert
we
State,
(1986),
interpreted
288 Ark.
Establishing
eliminate
associated with false
or statements
problems
promises
State,
377, 757
533
a
See
Ark.
S.W.2d
by prosecutor.
Vagi v.
296
is
(1988). This
one of the reasons the federal trial courts
from the
there
a
ascertain
defendant whether
required
in
Douglas
concurring
factual basis. As stated
Justice
his
York,
(1971):
in Santobella v. New
In not who bright I would erase the line about summary,
247 Therefore, I guilty. must state the factual basis dissent. JJ., dissent. Newbern, join
Purtle BOOTH, APARTMENTS, v. WEST Leland INC. d/b/a Booth Home Improvements 88-156 760 S.W.2d Court of Arkansas
Supreme 5, Opinion delivered December [Rehearing January denied 1989.] *13 Martin, Voter, Hutchinson, Karr, Karr & Charles by: appellant.
No brief filed. Hays,
Steele Justice. This originated small claims case municipal court. The only is whether or question not an appeal circuit was court timely filed. Booth,
Leland filed a small claims action appellee, against