Blake v. State, 5323

• Decision Date: 05 February 1968
• Docket Number: No. 5323,5323
• Citation: 244 Ark. 37,423 S.W.2d 544
• Parties: Jimmy BLAKE, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 544

423 S.W.2d 544

244 Ark. 37

Jimmy BLAKE, Appellant, v. STATE of Arkansas, Appellee.

No. 5323.

Supreme Court of Arkansas.

Feb. 5, 1968.

Leroy Froman, Searcy, for appellant.

Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.

JONES, Justice.

This is an appeal from a Criminal Procedure Rule 1 hearing denying appellant release from the Arkansas penitentiary.

The appellant, Jimmy Blake, is sixteen years of age, had less than a fifth grade education, and is one of ten children whose father does common labor at a mill and whose mother works in a laundry.

Appellant's first brush with the law came in 1965, when he was sent to the Boy's Industrial School from Woodruff County Juvenile Court. The instant appeal involves three cases in the White County Circuit Court.

In July 1966, in case number 2132, appellant was charged with burglary, petit larceny, and car theft. At the Rule 1 hearing, appellant testified that he could not read or write, but that he made a statement to the officers when he was arrested on these charges, and that he signed a statement, that about three weeks later an attorney was appointed to represent him, and that he entered a plea of guilty because he felt that he would not 'get as much time' on a plea of guilty. Appellant was sentenced to the penitentiary for two years on the burglary charge and five years on the grand larceny charge (car theft). These sentences were suspended and appellant was sent to the Boy's Industrial School where he remained for four months, after which he ran away. He was captured the following day and returned to the Industrial School and about three weeks later he escaped again.

During this absence from the Industrial School in January 1967, he was arrested and charged in case number 2142 with five counts each of burglary and petit larceny and two counts of grand larceny. Appellant made an oral statement to the arresting officers admitting his guilt to these charges and by appointed counsel, he entered a plea of guilty at his trial. He was sentenced to ten years on each of the five counts of burglary, sentences to run concurrently. The sentences were again suspended and appellant was again returned to the Boy's Industrial School, from which he escaped again after about three weeks.

While absent from the Industrial School this time, appellant was arrested in March 1967, and charged in case number 2151 with burglary, grand larceny, and petit larceny. Once again he made an oral statement to the arresting officers and pleaded guilty by appointed counsel. He received a sentence of two years on each of two counts of burglary and one on grand larceny, sentences to run consecutive to each other and consecutive to the sentences in cases number 2132 and 2142. This sentence in case number 2151 was suspended, but the suspension of sentence in cases number 2132 and 2142 was revoked and appellant was sent to the penitentiary. Thus, at present, appellant is serving 17 years as sentenced in 2132 and 2142, and has five years suspension remaining in case number 2151.

In July 1967, appellant testified at his Rule 1 hearing where he was represented by appointed counsel. From the petition, the testimony of appellant, the testimony of the sheriff of White County, and the testimony of the counsel appointed for appellant in his prior trials, together with all matters appearing of record, including the docket sheets and files in the circuit clerk's office, and after argument of counsel, the trial court denied relief, from which this appeal is brought. For reversal, appellant relies upon five points:

'1. Appellant was not advised of his right to counsel and his right to remain silent during his interrogations. He could not have made an intelligent waiver of these rights.

2. Appellant did not have the services of an attorney prior to his conviction in Case #2132.

3. Appellant did not have assistance of counsel at the critical stages of the proceedings against him in Cases #2142 and #2151. He did not have the effective benefit of counsel after counsel was appointed in Case #2142 and Case #2151.

4. Appellant was promised shorter sentences in Case #2142 and Case #2151 in return for a guilty plea. Appellant did not know the full consequences of his guilty plea in Case #2151.

5. Appellant's sentence to the Arkansas State Penitentiary constitutes cruel and unusual punishment within the meaning and spirit of the Eighth Amendment to the United States Constitution.'

As to the first point argued by appellant, we find no merit. Though appellant denies being advised of his rights, the trial court found, and the sheriff of White County who arrested appellant testified, that appellant was advised of his rights on each occasion and that appellant was not interrogated, but always talked freely and was cooperative. The sheriff also testified that appellant usually had the stolen items with him, indicating that there was no need for a confession. The cases of Meeks v. State, 239 Ark. 1066, 396 S.W.2d 306; Swagger v. State, 227 Ark. 45, 296 S.W.2d 204, and Johnson v. Zerbst, 304 U.S. 458, 59 S.Ct. 1019, 82 L.Ed. 1461, relied upon by appellant on the issue of intelligent waiver, are not applicable here. These cases were reversed when the defendant went to trial and pleaded guilty without the aid of counsel and without an intelligent waiver of counsel. The appellant in the case at bar was represented by counsel prior to his guilty plea. Appellant's reliance on Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, is to no avail here, as appellant pleaded guilty in all three cases, and thus, the confessions were never used against him. In Roach v. Bennett, Warden, 178 N.W.2d 488 (Iowa 1967), where the defendant made admissions and gave statements as to his guilt during the first two days of his detention without being advised of his right to counsel, but had counsel at the time of his plea of guilty in open court, the Supreme Court of Iowa, in habeas corpus proceedings, held:

'Since statements allegedly given were not introduced or considered in a trial, the rights announced in Escobedo and Miranda could not have been violated.'

Appellant's second point is also without merit. We agree that the docket entry does not reflect that appellant had counsel in case number 2132 and that it is not shown in the record who that counsel was, but the appellant himself testified on direct and on cross-examination that counsel was appointed for him in that case about three weeks after his arrest, and that the counsel was present in the court room when he entered a plea of guilty. The trial court found as a fact that ap...