*1 Ark. Stat. be relied on. statement points the required the circumstances 1962). In 27-2127.5 Ann. (Repl. § its have acted at peril would dark and left in the appellee to its vital that might prove something if it failed to designate 649, 234 Ark. Farmers Assn. Wyatt, Southern position. brought Thus the (1962). having 2d 531 appellant, S.W. ask for additional not in a position about the difficulty, costs. remanded.
Reversed and Howard, We C.J., Harris, Holt agree. JJ. of Arkansas v. STATE Clark SMITH 2d 591 571 S.W. 78-35 CR 9, 1978 delivered October Opinion (In Banc) Gould, KennethS. Clift, Orville by: appellant. Gen., L. Asst. Clinton, Atty. Kearney, Bill by: Atty. Jesse Gen., for appellee. *2 George This is a Smith, postconviction Rose Justice. 37. Rule On Procedure under Criminal proceeding Smith, 27, 1976, Clark guil- December pleaded appellant, theft. He was and two to two charges ty charges burglary three to ten confinement years sentenced years’ suspended. for March, 1977, filed a handwritten
In Smith petition for him 37 After had been Rule relief. an attorney appointed full filed. A eviden- three amendments petition 22. The court denied was held on December tiary hearing of fact and con- failed make written but to findings 37.3 This was (c). as Rule clusions of law appeal required see, relief, but as we shall denial originally of the has been abandoned. part appeal court, the been filed in this
A week after the had appeal to file in the trial court a obtained permission appellant filed That amendment was fourth amendment petition. court with after we had reinvested the trial jurisdiction it This as has been developed purpose. appeal, denial, counsel, from the trial without is now only judge’s fourth amended evidentiary hearing, petition. case is to a full un- The entire progress pertinent of the issue After the informations derstanding presented. filed, had been Bob Alsobrook was as Smith’s at- appointed with him to enter a of not torney appeared guilty. been After Shirron had Phillip appointed place Alsobrook, to that of In the plea changed guilty. accep- failed to ascertain the trial judge wholly ting Alabama, v. whether it was as voluntary, by Boykin required State, 257 513 2d (1969); 238 Ark. S.W. U.S. Byler Rule 24. We (1974); and Criminal Procedure quote when the record of the proceedings pertinent accepted: Shirron, do feel like this Defen-
The Court: Mr. you dant is prepared plead? do, Honor. Yes, I
Mr. Shirron: your has feel sure that Mr. Shirron explain- The Court: I the effect of constitutional ed to all you your Smith, how do charge I ask you plead plea. you, theft, guilty? burglary Defendant: Guilty. have recommenda- Does the State
The Court: like make to the Court? tion it would Yes, recommends Sir. The State Mr. Scrimshire: with three ten suspended. years penitentiary *3 of this will be the Court The Court: It judgment to term of ten be sentenced years peniten- you and I will honor the State’s recommendation and tiary, He is Mr. to three of that. agree yours, suspend years Sheriff. Smith, filed
Less than three months later as a prisoner, his his first relief. He that petition postconviction alleged had led him to believe that he attorney by pleading guilty would receive a lesser sentence and that the failed to tell him it refused to with the go along original agreement until after he was then Donald M. pleaded guilty. Spears ap- as counsel. first amendment Smith’s pointed Spears’s was induced petition by alleged members of the sheriff’s Smith promise by would not have to serve his department
sentence, but would be sent to a rehabilitation center instead. second amendment Spears’s that Alsobrook had relieved at a critical been alleged stage consent, or without Smith’s proceedings deny- knowledge him his to effective counsel. third amend- ing right Spears’s ment that the sheriff’s office had obtained statements alleged threat, coercion, reward, Smith hope the statements should not Smith. be admissible against
At the Smith evidentiary represented by hearing Several witnesses were called in- Spears. petitioner, two members of the sheriff’s Smith also cluding department. testified. His to the effect that was almost testimony entirely he would be he because thought two confessions he signed a final center. In leading sent to a rehabilitation response he he because thought he that he said pleaded question It be center. may the rehabilitation in order to had to go that he said his nothing he did not noted that deny guilt, even that there his bargain about understanding did not that he that he did such a say had been bargain, guilty. he After when fully pleaded understand no find- but made court denied law. of fact or conclusions ings order, and from the his own notice of Smith filed appeal Clift, for the Orville appeal. fourth attorney, appointed Kenneth B. with him a fifth Mr. associated attorney, Clift identifies him as an Gould, whose pleadings signature of law and Director Clinical associate Programs professor at Little Rock. law school of Arkansas University was filed in this court counsel after the record Seven days to file a fourth amendment to Smith’s asked peti- permission should be filed the trial tion. such an amendment Since time, with At that court, reinvested that court we jurisdiction. course, we had no knowledge prior proceedings. failure, in out the trial court’s The amendment pointed and Rule accepting Byler, plea, comply Boykin, sentence: 24. The assertion in the amendment is this pivotal *4 with the “The failure of the court to comply constitutionally of a trial in mandated pleas requirements judge accepting in resulted Petitioner’s plea being involuntary plea under the Petitioner’s United rights abridged States and under the Rules of Criminal Constitution Procedure of the The then went State Arkansas.” pleading on to the failure of to raise this at that counsel say question 22 a denial of the December constituted evidentiary hearing counsel. the trial court denied effective assistance of When the amended without a a second notice of hearing, filed, was briefed in was and in due course the case appeal this court. in their counsel’s failure at the outset
We emphasize that the trial whatever in to make brief chief any argument hear- relief after the evidentiary either in court erred denying
333 An and conclusions. written make findings in failing ing Mathis, 255 v. waived. on is Cowger issue not appeal argued make failure to court’s (1973). 2d 212 511, 501 Ark. S.W. brief, in in mentioned, reply merely passing, is findings v. Dist. No. Imp. Waterworks too late. but that comes Ryall (1969). 2d 341 739, 447 S.W. 247 Ark. we have remains the allegation quoted,
There only in effect the court’s failure which comply states results “the mandated constitutionally requirements” itself in the involuntary. guilty being There is no con- sustained. cannot be That position trial make the that the stitutional explana- judge requirement States, tion See v. United U.S. required Boykin. Brady 742 (1970). As the Court of stated United States Appeals F. (9th 2d 417 Cir. 1976): Pricepaul, made court decisions have federal
Subsequent however, about clear, record silent plea-taking reversal; the automatic does require Boykin if it conviction stand postconvic- prior may proved tion evidentiary hearing voluntary intelligent. statement Circuit
To the same effect is this Eighth Lockhart, 2d (1973): 490 F. Court of Todd v. Appeals we believe that as a matter Since constitutional and in- voluntary whether question we of other courts which with a number agree telligent, held that have a state in a state may, post-conviction . . . the otherwise defective cure hearing, plea-taking transcript. in Todd
(The does not disclose what allegations opinion federal habeas led to the of a second corpus petition granting hearing.) evidentiary *5 the true not whether the
Thus substantive question 24, Rule but trial court with and complied Boykin, Byler, in fact and volun- whether 22 the trial court con- made. At the December tarily hearing amendments, with sidered that very upon petition, question some five different issues fact to validity asserting going The court The correctness of that plea. plea. upheld not decision is questioned. law, we conclusion
All
have left
that
court’s
Rule 24
failure to
resulted
in-
comply
plea’s being
recent
we have
denied
voluntary. During
years
repeatedly
because the
postconviction petitions
allegations
merely
State,
566,
v.
Stone
Ark.
Indeed, this record discloses three separate examples fact, confirm the for not necessity requiring allegations First, conclusions of law. several attorney Spears alleged relief, different reasons for but he did not in- postconviction trial clude the failure to with Rule 24. We judge’s comply assume, in fact, the absence of that he contrary allegations consulted with his client and no concluded that additional for relief could be his client’s grounds supported by testimony Second, under oath. Clift and Gould elected not to attorneys that this ask cause be remanded to the trial findings and conclusions or to the trial court’s decision argue after the Here we have the evidentiary hearing wrong. know, record us before without any assumptions, counsel’s decisions were well do taken and in- represent Third, effective assistance of counsel on their part. attorneys Clift Gould chose to a conclusion of law in plead only their final amendment we petition. Again may fairly assume that this omission does not constitute ineffective counsel, because, assistance of as with just respect attorney we assume that Spears, consulted with their client and they concluded that no additional for relief could be grounds sup- their client’s under oath. ported testimony It is time for this to come to an end. Smith proceeding has had the assistance of five all lawyers, provided apparently He has had expense. public complete opportunity fact that be every plead might supported by proof, testify call witnesses in his behalf. We can find no person, reason for still another without the ordering slightest *6 not already new fact that
basis supposing be discovered. record would
Affirmed. dissent. Howard, JJ.,
Hickman George Howard, 1am compel- dissenting. Justice, Jr., in affirming from the the majority dissent led holding on fourth court appellant’s the trial denying to an which was filed to his pursuant amendment this order of Court. State, 473, 262 Ark. 1977, 28, in McGee
On November 885, we 557 S.W. 2d said: (1976),
“. . Rule 24.5 which . provides: or nolo shall not plea Court accept the first without determining contendere the whether shall determine The court voluntary. is, If it result of a agreement. tendered be stated. the court shall agreement require this rule is Clearly, mandatory. if a 25.3(c)
“. . Rule plea agreement . provides concurred, then trial court has exists in which the at the defendant the court ‘shall advise the open is stated that: time the agreement court; is not on the (1) binding agreement nolo contendere (ii) if the defendant pleads guilty that con- be different may disposition agreement. templated as to trial court’s Without advising appellant is no there these upon guilty pleas, requirements that his assurance pleas it circumstances made. In these might very voluntarily well be that accused attempted pleaded guilty under a of the law robbery charge misunderstanding and his rights.....” State, 10, 1976, 720,
On Cusickv. 259 Ark. May S.W. 2d we also made the observation: following
“In we out the that ‘Standards Byler, pointed to Pleas of (1968) the Relating Guilty’ promulgated Bar American Association cautioned that a court should a of without first the accept plea guilty addressing and, defendant after un- he personally determining derstands the nature of the him that charge, informing his of or nolo contendere was a waiver plea guilty to trial and of the right maximum by jury possible on sentence the We held in that a charge. Byler simple affirmative answer as to open inquiries whether the defendant understood the elements of the and his trial a charge waiving jury by entering was not sufficient to meet Boykinrequirements, least no when statement or of the minimum explanation or maximum had been made. penalty
.“. . It is true that the certificate of the attorney ap- pointed the defendant contains statement represent understood all of that and the appellant ‘paper’ and effect of his of nolo contendere meaning that defendant had been advised that the information stated the and that the correctly charges would judge find him of nolo contendere. The upon record discloses that the trial did state the nature judge of the and ascertained from the defendant that charge he understood. There is whatever to indicate that nothing knew the appellant range possible punishment.” But the in the face of the today, above majority, hold: pronouncements
“There is no constitutional the requirement trial make the judge explanation required Boykin.” In of this the Court cites support United pronouncement, Lockhart, Statesv. F. 2d 417 and Toddv. 490 F. Pricepaul, 2d However, 626. a careful and minded of these open reading conclusion one inescapable leads cases readily Moreover, not indeed, only is, untenable. position majority’s door to un- untenable, but opens is majority’s posture bench alike bar and throughout of the on the certainty, part the rule law involving to the actual status state as of the This, indeed, is grain pur- before us. against issues whose in the State tribunal highest scope pose make give is to plain clarify, responsibility prime law. Instabili- to the rule of or stability of permanence degree confusion, creates but culminates in the law not only ty and basic of fundamental rights. likelihood deprivation stated: Court States the United Supreme In Boykin, supra, Cochran, 506, 516, we “. . . In U.S. Carnley counsel, a of waiver dealt with a right problem waiver We held: Sixth Amendment ‘Presuming right. record must from a silent record is impermissible. *8 which show, an and evidence or there must be allegation in- counsel but show, that an accused was offered the offer. rejected understandingly telligently is not waiver.’ less Anything must be think that the same standard “We applied whether a voluntarily guilty plea determining said, is more For, a of than made. as we have plea conduct; an admission of it is a conviction. Ignorance, inducements, coercion, terror, subtle incomprehension, of un- threats be a blatant cover-up might perfect an waiver constitutionality. question of effective is course constitutional governed right proceeding by federal .... standards federal are involved “Several federal constitutional rights when a in a waiver that takes place First, entered in state criminal trial. is the privilege self-incrimination compulsory guaranteed against the the Fifth Amendment and States by applicable Second, Fourteenth. . . . is the to trial reason the right ac- Third, . . . to confront one’s is the by jury. right three . a waiver of these cusers. . . We cannot presume silent record. federal from a important rights im- death or is at stake for an accused “What facing of which demands the utmost solicitude prisonment courts the with the are matter ac- capable canvassing cused make a full sure he has what understanding its connotes and of When the consequence. function, he record ade- leaves a discharges judge . review be . . and later may sought quate forestalls of collateral that seek spin-off proceedings memories.” probe murky In relied Pricepaul, supra, upon by majority, Court stated:
“. . . hold that when introduced the Pricepaul [W]e minute record California which conviction prior did not disclose affirmatively protected waived and no Boykin voluntarily introduced, other was record he made a suf- showing ficient to at which the require evidentiary hearing would have the burden to that the government prove was in accordance with plea-taking Boykin.” Lockhart, In said: Court supra,
“. . . hold that once a state has prisoner [W]e demonstrated that the not conducted plea taking accordance with state if it Boykin, may, affirmatively in a proves post-conviction hearing obviate the voluntary intelligent, necessity vacating plea.”
The record in this case reflects the following testimony offered the on initial by appellant during appellant’s post-conviction on December 1977: petition At the time were in did
“Q. you anyone placed custody read you your rights?
A. No. How in before Q. long jail you you signed any ? statements
A. Two weeks. of time? that period during Who talked you
Q. and the Smith high Lloyd No one but A. Deputy Sheriff. did they What say you?
Q. mentioned Smith Well, something ah A. Deputy Lloyd said if He Center. Hot Rehabilitation the about Springs me recommenda- he would a confession give I made I in to see that obtained my requirements.” tion order of Pricepaul, interpretation Even under the majority’s the Lockhart, I submit is limiting which and supra, supra, McGee, in supra, rule announced supra, Boykin, scope of Cusick, case in view in this reversal and supra, requires witnesses State, examined cross the fact the having although testimony did not direct called offer appellant, with in accordance the plea appellant’s prove in order to and made voluntarily Boykin v.- UnitedStates “obviate the necessity vacating plea.” Lockhart, Todd Pricepaul, supra. supra, in observation makes following Finally, majority its opinion: . This it has been
“. . as developed by appeal, denial, the trial counsel, is now only judge’s without an amendedpeti- evidentiary hearing, fourth added) tion. (Emphasis court’s amendment out the trial
“The
pointed
failure,
with
Boykin,
accepting
plea;
comply
in the amend-
Rule 24. The
assertion
pivotal
Byler,
court to
ment
this
‘The failure
sentence:
comply
of a
mandated
constitutionally
requirements
resulted
trial
of guilty
judge
accepting pleas
Petitioner’s
being
involuntary plea
States
under the United
Petitioner’s
abridged
and under
Rules
Criminal
Constitution
’ ”
*10
of the State Arkansas.
Procedure
I do not visualize
fourth amended
appellant’s
petition
nature,
such a restrictive
but on the
it is broader
contrary,
and embraces all of the contentions that were
alleged
initial
his second amendment as well as
appellant’s
the third amendment. The
heading
appellant’s paragraph
number 4 in
fourth
as
amended
follows:
petition
“4. Petitioner’s
motion in this cause should be
original
amended includethefollowing.”
the above
Following
quoted
heading,
appellant
24.4,
discusses
and Rules
specifically
24.5 and 24.6 of
Boykin
the Arkansas Rules of Criminal Procedure as
been
having
and contravened
the trial
disregarded
the time the
by
submit,
therefore,
was taken. I
appellant
taken
in this
posture
embraces all of
majority
regard
and characteristics of a
ingredients
without
technicality
or
substance
merit.
Moreover, it is well
that an amendment
to a
recognized
that does
action,
not set forth new cause of
complaint
but is
or
merely
of the cause of action
expansion
amplification
stated,
amendment,
here,
already
as
relates back and
takes
effect as
the date of
the commencement
the original
Deal,
action.
&
905,
Bain
251 Ark.
475 S.W. 2d
Company
708;
Miller,
Little Rock Traction & Electric Co. v.
245,
Ark.
993;
Corkille,
S.W.
WesternCoal &
Co. v.
96 Ark.
Mining
387,
(8th 1976), Cir. at this where the Court appropriate point, stated was not foreclosed from petitioner litigating issue of an unconstitutional in-court in a identification second action, state even the issue was post-conviction though raised in the initial where there post-conviction proceeding, was no that the matter either adequate showing finally adjudicated waived in the previous However, the would foreclose proceeding. majority appellant on his fourth amended having hearing petition under that the trial court full conducted a pretext evidentiary on December 1977. But it must be remembered that the trial court made no of fact and findings conclusions as law our Criminal Rule 37.3(c), required consequent- *11 ad- either the matter was finally said that it cannot be ly, waived matter or the previous judicated proceeding. I think case because
I would reverse this appellant’s correct asserting counsel are learned eminently Rule under Arkansas failed to meet its trial court obligations rule in Procedure 24.5 which Boykin, of Criminal adopts supra. WORKS, INC.
VALLEY METAL SMITH-INLAND, A. O. INC.
CHEMPRO CORP. 78-75 S.W. 2d 138 delivered October Opinion I) (Division P.A., Laser, B. & Peter by: Huckabay, Sharp, Haley, Young Heister, for appellant.