*1 stay pending appeal. Dudley
Hickman, Hays, JJ., dissent. Hickman, Justice, dissenting. deny Darrell I would and to are stay. public records question unquestionably access this the Freedom of deny at time violates public Information Act.
Dudley Hays, JJ., dissent. join in this v. STATE of
Herbert MALONE Arkansas CR 86-206 Court
Supreme of Arkansas Opinion delivered December *3 Appellant, se. pro Clark,
Steve Miller, Gen., Clint Att’y Gen., by: Asst. Att’y for appellee.
Per Curiam. Petitioner Herbert Malone was found guilty aby jury aggravated robbery, aggravated assault and theft of property. He was sentenced an as habitual eight offender with prior felony hundred, convictions to three forty eight and imprisonment. The terms were ordered consecutively. served We Malone v. 292 affirmed. 243, 729 S.W.2d 167 (1987). Petitioner now seeks postconviction relief to Criminal pursuant Procedure Rule alleging that his two at trial and attorneys attorney on appeal were ineffective and that several errors were made the trial judge course the trial.
Petitioner contends that the trial court erred when it denied counsel, his pretrial motion to relieve sentenced him to three hundred years imprisonment for aggravated robbery range for the statutory a not within the
constituted sentence offense, jury range punishment instructed the and sentenced to aggravated up was five robbery is an his sentence asserts that him habitual offender. He also as an penalties. unconstitutional bill of and pains court did not instruct We note that the trial first to aggravated robbery up range that the of sentences jury closing argument five hundred years. (The deputy prosecutor sentence.) asked the to return five hundred relieve counsel to deny decisions of the trial court motion not habitual offender are as an which could under 37 since were matters they reviewable Rule not Rule 37 does have on direct presented appeal. been court or raised in the trial when an issue could have been remedy so a question direct issue argued represents on unless the appeal, abso is rendered fundamental that the of conviction 77, 716 White v. S.W.2d lutely void.
Also, bill was not a of pains penalties sentence imposed enactment which legislative it was of a product because not the proceeding. without benefit punished judicial Tribe, Law, 10-5 See L. Constitutional American error, allega of trial allegations
Unlike the other *4 tion of concerning aggravated the sentence imposed however, no 37.1(c), is cognizable under Rule there robbery year- merit that the three hundred contention petitioner’s by in law. sentence was excess of the maximum authorized was an since jury petitioner was instructed that accurately convictions, he felony habitual offender with more than four prior for aggravated was to an extended term of subject imprisonment more life.” (40) of “not less than nor than robbery forty years A of 1985). Ark. Stat. Ann. 41-1001.2(a) (Supp. life the “more than life” under our statutes would be without death, more severe than only penalties of or the possibility parole life no under Arkansas law or provision There is prison. a term States a sentence of prohibits United Constitution which beings.1 life human span which exceeds the usual eligibility parole practical petitioner prejudice suffered no to his status In terms offender, he is purposes a fourth from the sentence of three hundred because as In a his at allegation, alleges attorneys related that trial should have sentence. As objected the three indicated, objection such an would have been futile.
Petitioner also contends have attorneys that should objected when an with the District Court attorney United States gave closing argument at his He contends that counsel trial. should have objected when the was not introduced at the attorney beginning of the trial as from the being Attorney’s United States Office. Petitioner does not how he was explain prejudiced by attorney’s or presence by identify failure to him as an assistant United States To Attorney. allegation on an ineffective prevail counsel, assistance of the petitioner must show that counsel’s performance was deficient in that counsel made an error so serious that he was not functioning guaranteed as the “counsel” by Second, sixth amendment. the deficient must performance have resulted in so as to have prejudice pronounced deprived petitioner of a fair trial and produced a result whose outcome cannot be relied on as just. Both are before it showings necessary can be said that the conviction resulted in a breakdown in the adversarial process. Strickland v. 466 U.S. Washington, (1984). Petitioner has not made a showing prejudice.
Petitioner next states
was arraigned
that he
federal court and then
by
grand
indicted
a federal
jury on the
charges for which he was convicted in circuit court. The federal
dismissed,
indictment was
and petitioner argues
refiling
charges in state court was
alleges
He
that his
improper.
counsel
should have argued that he was not indicted
a state
grand jury
and was not
arraigned
properly
in state court. There is no merit to
petitioner’s conclusion that he could not be tried in state court
after dismissal of
Illinois,
federal
See Bartkus v.
charges.
Further,
U.S. 121 (1959).
the record indicates that
arraigned in state court. He had no
right
constitutional
to have
the state proceed by grand
Gernstein v.
Pugh,
indictment.
Petitioner states in conclusory fashion that his ineligible regardless for the of of the sentence Ark. Ann. parole Stat. 43-§ imposed. 2830.2(4) 1985); (Supp. 1985). 43-2830.3(B)(5) (Supp. Ark. Stat. Ann. §
132 would not subpoena his case and counsel would not prepare whether rests on allegation When an witnesses. unspecified it is incumbent have been subpoenaed, witnesses should witnesses, their summary to name the have been would that the testimony and establish testimony 211, 680 State, 284 Ark. v. See Tackett admissible into evidence. with in nature general (1984). allegation S.W.2d An 696 deserving of defense is not no to the showing prejudice of actual State, 426, 682 S.W.2d v. 284 Ark. relief. Isom postconviction that admissible allege any does not Petitioner a particu subpoena counsel’s failure to testimony was omitted by lar witness. who repre alleges attorney further that
Petitioner attorney He states that on was ineffective. sented him appeal fact that he (1) attention: this court’s brought should have had been federal indictment was tried in state court after the and dismissed; state court arraignment lack of (2) the of an (3) state grand jury; participation indictment trial; the issue of (4) at his assistant United States Attorney light admissible in would have been testimony whether wife’s 100, 717 State, S.W.2d 488 v. 290 Ark. of our decision in Ricarte trial court the issue (1986) . Petitioner himself raised in the court; otherwise, arraigned whether he had been state court. to the trial argued issues set out were not by petitioner on raising appeal cannot be ineffective for not Counsel found State, See v. Rawlings were below. arguments which not raised 446, 683 see also (1985); 284 Ark. S.W.2d 223 Halfacre v. 312, 718 S.W.2d raised Although court, shows that issue in the trial the record arraignment nothing to indicate arraignment there was an and he offers A hallmark the issue constituted a meritorious point appeal. arguments assessing advocacy process effective is the appellate Barnes, 463 U.S. on Jones focusing likely those to prevail. S.W.2d 139 Troutt v. (1983); neglected (1987) . Petitioner has not shown that his attorney on issue he could have any prevailed appeal. raise on which affidavit of to his petition Petitioner has attached at trial. testimony his wife Malone in which she recants her Mary 37, however, Rule The affidavit cannot be considered under collaterally attacking because the Rule provides
133
to
to
and was never
to
a means
add evidence
intended
State,
v.
record or
McDaniel
refute evidence adduced at trial.
170,
(1984).
Ark.
Finally,
petitioner
attempted
amend this
We will
to be amended in
petition.
a
permit petition
379,
State,
v.
accordance with Rule
Birchett
Ark.
37.3(a).
Petitioner’s
motion
amend was
first
to
denied because it was in essence a
to the state’s
response
response
to the original
in the
petition
simply
arguments
restated
petition. The
argument
second motion to amend consisted of the
had not been
Miranda
informed of his
properly
rights. Since the issue asserted by
could have been
raised at trial and was not
to
sufficient
render the
in his
void,
case
the second motion amend
also
See
to
denied.
Hill v.
State,
194,
State,
278 Ark.
Petition denied. Hays, JJ., dissent.
Purtle
Justice,
Purtle,
A
I.
ought
John
dissenting.
prisoner
not to
be ordered to serve more
than
lifetime without
Three
parole.
hundred and
is cruel
forty-eight years
and unusual. This sentence
be
should modified because
the statute authorizes maximum
“life.” We
ought
this sentence
modify
instead of
using excuses to uphold it. A
casual
fairly
reading of
Stat.
41-1001.2(a)
Ann.
1985)
(Supp.
gives
distinct impression
that the range
case,
in this
even with
penalty
eight
prior
convictions,
felony
is from
reading
to life. After a
careful
specified range
still between 40
and life. This court
should abide by the statute and our own
and reduce this
precedent
time to life in
the maximum
prison,
allowed
law. See
generally
126,
Singelton
274 Ark.
After the trial court correctly instructed the range of the penalty, state a 500 sentence in requested closing argument. The reason I can of for only conceive this argument and consequent sentence is failure to understand be In to the served. of the statute time application
the proper *7 a verdict of three returned spite of a instruction the proper the court by was accepted forty-eight years, of the is no a reflection sentence. This sentence doubt pronouncing and the of Correction public perception Department actually out of time harmony prisoner courts are courts. Whatever by serves in relation to the time sentenced should abide sentencing, reason for unusual courts such sentences to legal and leave the execution of legislative enactment the executive department. J.,
Hays, in this dissent. joins Chastain, CHASTAIN, Washington, Willie Dennis Charles Jones, Jones, Jr., Ann Mrs. B. Jean Onyce Young, Thomas Hills John and Trustees of Pleasant Baptist Funkhouser Feierabend, Agents v. Pat or as DAVIS Randy Church McGinnis, et Max R. al.
87-167 Court of Arkansas
Supreme delivered December Opinion