Morris WOODS, Jr. v. STATE of Arkansas
CR 82-122
Supreme Court of Arkansas
January 31, 1983
271 Ark. 271 | 644 S.W.2d 937
Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
ROBERT H. DUDLEY, Justice. In 1981 appellant entered pleas of guilty to three charges of aggravated robbery and one chаrge of burglary. The trial court did not accept the pleas until he was satisfied that appellant knew the nature of the charges, the minimum and maximum sentences, that hе was waiving the right to a jury trial and that the plea was
(9) I believe that my lawyer has competently done all that anyone could do to counsel and assist me, AND I AM SATISFIED WITH THE ADVICE AND GUIDANCE HE HAS GIVEN ME.
On September 14, 1982, appellant filed a handwritten petition for post-conviction relief alleging that his imprisonment was illegal in that his confession was coerced; that his arrest was illegal; that the prosecution had failed to disclose favоrable evidence; and that he did not receive effective assistance of counsel. The same trial court scheduled a post-conviction hearing рursuant to
Appellant, whose sentences have now been put into execution, asks to withdraw his pleas pursuant to
In the second phase of the recusal argument appellant contends that the trial judge should have recused himself as a matter of law because “the practice of having the trial judge hear Rule 37 petitions violates the spirit, if not the letter, of the Constitutional prohibition against a judge presiding in the trial where he has ‘presided in any infеrior court.‘”
Here, no inferior court is involved in the context of the Constitution and the procedure does not violate the letter of Article VII, § 20. Likewise, the proсedure does not violate the spirit of fairness imbued in the section. As stated in Meyers v. State, 252 Ark. 367, 479 S.W.2d 238 (1972):
[T]he appellant argues that his constitutional rights were violated because the pоstconviction proceeding was presided over by the same judge who imposed the original sentence. Counsel cite no authority for this contention. The point is discussed in § 1.4 of the Standards Relating to Post-Conviction Remedies (1968). That discussion first points out that the most desirable venue for a postconviction proceeding is in the сourt in which the challenged conviction and sentence were rendered. The discussion then continues: “Where jurisdiction is vested in the trial courts and venue is determined as in (b) above, neither a general rule favoring nor one disfavoring submission of post-conviction applications to the same trial judge who originally presided is clеarly preferable.” The Commentary goes on to state: “The same judge brings to the post-conviction proceeding familiarity with the case or the appliсant that may make for more efficient handling. The same judge may be more free in fact to
consider or reconsider matters affecting his prior rulings than would a cоlleague on the bench. On the other hand, there are obvious disadvantages and risks in such a practice. There is a value in seeking determination from a mind not prеdisposed by prior incidents, and a significant related value that the arbiter appear not to be predisposed.” We have recognized the need for а different presiding judge when the one who originally heard the case is biased or, for want of a record of the first hearing, must appear as a witness. Elser v. State, 243 Ark. 34, 418 S.W.2d 389 (1967); Orman v. Bishop, 243 Ark. 609, 420 S.W.2d 908 (1967). In the case аt hand, however, the petitioner asserts no factual basis for his insistence that the assignment of a new judge is constitutionally mandatory. We find nothing in the record to suggest that Judge Enfield was disqualified from acting upon the postconviction petition. To the contrary, he appears to have treated the petitioner with courtesy and fairness in every particular. The present contention is therefore without merit.
When we were asked to reverse the above quoted language, we reaffirmed it. Easley v. State, 255 Ark. 25, 498 S.W.2d 664 (1973).
In the case before us there is no suggestion of prejudice in the original proceeding, nor is there any proof to suggest that the trial judge should be disqualified from aсting on the post-conviction proceeding, nor is there error as a matter of law because the same trial judge presided over both proceedings.
Appellant next argues that the trial judge erred in excluding evidence by the original attorney on the issue of ineffective assistance of counsel. The issue arosе in the following manner. Appellant‘s original attorney was on the witness stand for direct testimony on appellant‘s case-in-chief. He was asked if he filed a motion to suppress appellant‘s confessions on the ground that they were taken during an unlawful arrest. The attorney responded that he had filed such a motion. The State thеn objected to the line
Affirmed.
PURTLE, J., concurs.
JOHN I. PURTLE, Justice, concurring. I concur in the result only because we did state in Moore v. State, 273 Ark. 231, 617 S.W.2d 855 (1981) that the accused had the opportunity to raise ineffectivе assistance of counsel at the time of sentencing. This rule is entirely too strict and for numerous reasons should be modified. It takes no imagination to realize that most defendants are not learned in the law and would not know at the time of sentencing whether, for example, evidence had been seized in violation of the Fourth Amendment protection. In most instances the allegations of ineffective assistance of counsel are not known until much later. In any event a statement signed by an aсcused, in the presence of his attorney, that he is satisfied with the services of that attorney is at the very least suspect. Such a statement could even be exеcuted prior to sentencing or trial. In the future I shall vote to hold such statements made at or before sentencing to be of little or no value in determining effectiveness of counsel. Under any circumstances the burden would be with the defendant to prove ineffective assistance. The signed statement should perhaps be allowed as evidence of effectiveness, but should not be conclusive in and of itself.