Thе appellant, Johnny Mark Propst, pleaded guilty to first-degree murder and was sentenced to forty years in the Arkansas Department of Correction. He subsеquently filed a petition to withdraw his plea pursuant to Arkansas Criminal Procedure Rule 26.1. In the petition, Propst alleged that ineffective assistance of counsel prevented a knowing and intelligent waiver of his right to a jury trial. Specifically, Propst alleged that his attorney failed to make him aware, beforе he entered his plea, that he would have to serve seventy percent of his sentence before he would be eligible for parole. The Circuit Cоurt treated Propst’s petition as a request for relief under Arkansas Criminal Procedure Rule 37 and denied relief. Propst now appeals that order. We аffirm.
On appeal, Propst reiterates his ineffective-assistance-of-counsel argument. He argues that his plea was not voluntary and intelligent because his defense attorney failed to advise him of the existence of Act 1326, now codified at Ark. Code Ann. § 16-93-611 (Supp. 1997), which required that persons who are convicted of first-degree murder, among other serious felonies, serve seventy percent of their sentence before becoming eligible for parole. The Circuit Court denied relief on the basis that the conditions of parole did not play a part in Propst’s decision to plead guilty.
The rule for evaluating ineffective-assistance-of-counsel claims in cases involving guilty pleas appears in Hill v. Lockhart,
In Hill v. Lockhart, Hill filed a petition for habeas corpus in which he alleged that his guilty plea was not voluntary and intelligent because his attorney misinformed him about the length of time he would have to serve before becoming еligible for parole. Hill’s attorney, and the court that accepted his plea, both informed Hill that he would have to serve one-third of his sentence before becoming eligible for parole. Hill was a “second offender” under Arkansas law, however, and was therefore actually required to serve one-half of his sentence before becoming eligible for parole.
The Supreme Court affirmed the denial of habeas corpus relief on the basis that Hill did not make the required showing of prejudice under Strickland v. Washington, supra. Consequently, the Court did not make any finding as to whether Hill’s counsel, by misinforming him about his parole eligibility, rendered deficient performance.
In the year following the Supreme Court’s decision in Hill v. Lockhart, we had the opportunity to address the issuе of counsel’s performance in parole eligibility matters in Haywood v. State,
After our decision in Haywood, the United States Court of Appeals, Eighth Circuit, had the opportunity to decide the issue left open by the Supreme Cоurt’s opinion in Hill v. Lockhart. Hill filed a second habeas petition in which he made a showing of prejudice as required by the Supreme Court opinion. The Court of Appeals, consequently, had to address the issue of the adequacy of his attorney’s performance. The Court held that the advice that Hill received from his attorney about the decision to plead guilty was not within the range of competence demanded of attorneys in criminal cases. Hill v. Lockhart,
The Court of Appeals emphasized, however, that not every case will result in a finding of deficient performance. The Court pointed out that in Hill’s сase, there was a reasonable probability that the result of the plea process would have been different but for the erroneous information:
Not only had Hill explicidy asked his counsel about the parole system in Arkansas, but he had made clear that the timing of eligibility was the dispositive issue for him in acсepting or rejecting a plea bargain. He told his attorney that he considered it no bargain to forego a trial unless his eligibility would be sooner than sevеn years, which he understood to be the time he could serve wdth commutation of a life sentence .... Given the attorney’s knowledge of his client’s particular concern, a failure to check the applicable law was especially incompatible with the objective standard of reasonаble representation in Strickland .... [H]ere the misadvice was of a solid nature, directly affecting Hill’s decision to plead guilty.
Hill v. Lockhart,
In later cases, the Court of Appeals reiterated the narrowness of the Hill decision. “The holding in Hill. . . was narrow, and rested primarily on the district court’s finding that petitioner pleaded guilty as а direct consequence of his counsel’s erroneous advice and that, but for this advice, the outcome of the plea process would have been different.” Hale v. Lockhart,
We think the decisions of the Eighth Circuit are consistent with our reasoning in Haywood: that erroneous advice on parole eligibility does not automatically render a guilty plea involuntary. The Eighth Circuit’s opinion in Hill v. Lockhart, as well as its subsequent opinions, stand for the notion that an attorney’s erroneous advice about parole eligibility would be the basis for a finding of ineffective assistance of counsel only when it is clear that the dеfendant’s parole eligibility, from the defendant’s point of view, was the “basis of the bargain” with the State.
In the instant case, it is clear that Propst’s decision to plead guilty did not depend on his parole eligibility. During the postconviction hearing, Propst testified that the State made a plea offer of forty years’ imрrisonment in exchange for a plea of guilty. Propst also testified that the prosecutor who made the plea offer informed him that, based on additional evidence that had been obtained, capital murder charges would be filed if Propst did not plead guilty to first-degree murder. Propst stated that his attorney never told him how much time he would serve, and that “I never asked him; at the time I was happy to get that under the circumstances.” On cross-examination, Propst furthеr admitted that he did not discuss parole with his attorney.
Propst argues that he thought that he would become eligible for parole in eight to ten years, and that his аttorney should have told him about the existence of Act 1326 in order to dispel that impression. In other words, Propst asserts that if his attorney had volunteered accurate information about his parole .eligibility, he would have declined the opportunity to plead guilty and would have insisted on a trial.
We think this case is a far cry from Hill v. Lockhart,
Affirmed.