Branham v. State, CR
| Decision Date | 01 June 1987 |
| Docket Number | No. CR,CR |
| Citation | 730 S.W.2d 226,292 Ark. 355 |
| Parties | Earl S. BRANHAM, Appellant, v. STATE of Arkansas, Appellee. 87-12. |
| Court | Arkansas Supreme Court |
Pruitt & Hodnett by Roger T. Jeremiah, Fort Smith, for appellant.
Steve Clark, Atty. Gen. by Lee Taylor Franke, Asst. Atty. Gen., Little Rock, for appellee.
In 1985 Earl Branham was charged with nineteen counts of possession of a controlled substance, delaudid, with intent to deliver. A plea bargain was accepted by the trial court and in accordance with its terms one of the charges was dropped and Branham pled guilty to the remaining eighteen counts, receiving a sentence of twenty years in the Department of Correction with five years suspended.
Six months later Branham filed a petition for post-conviction relief under A.R.Cr.P. Rule 37. He alleged that Ark.Stat.Ann. § 82-2617 (Schedule II) under which he was charged had been repealed, that a search warrant served on him was illegal, that defense counsel's ineffectiveness deprived him of a fair trial, including the failure to notify him of certain rights as a first offender, and failing to subpoena a physician who had prescribed the drugs.
The trial court ordered an evidentiary hearing on the Rule 37 petition at which several witnesses testified, including Branham and the public defender who had defended him on the charges. Following the hearing the trial court made detailed findings of fact and conclusions of law. He found that Ark.Stat.Ann. § 82-2617 had not been repealed, that the allegation concerning the search warrant pertained only to the charge that was dropped, that Branham was not a first offender, that evidence adduced at the hearing established that acts by Branham while in California in shipping drugs from California to be delivered in Arkansas constituted a violation of Arkansas law, that the evidence established "overwhelmingly" that Branham received effective representation in that counsel was prepared to defend the charges and was prevented from doing so because Branham elected to plead guilty for a twenty year sentence with five years suspended. The trial court found there was a factual basis for the guilty pleas and that Branham's pleas were made voluntarily and with a full understanding of the charges and of the consequences.
Earl Branham has appealed from the denial of his Rule 37 petition. He assigns two points of error: 1) the trial court erred in accepting his guilty plea by failing to have Branham state whether there was a factual basis for the plea; and 2) defense counsel was ineffective in failing to demand sentencing as a first offender, failing to communicate with defendant's physician, failing to move to suppress tape recorded conversations and failing to move for a continuance. We find no merit in the arguments.
It must be remembered that on appeal from the denial of a Rule 37 petition following pleas of guilty there are only two issues for review-- one, whether the plea of guilty was intelligently and voluntarily entered, two, were the pleas made on the advice of competent counsel. Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986); Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982); Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981). We are satisfied on both counts.
The burden is on the petitioner to prove his allegations for post-conviction relief, Porter v. State, 264 Ark. 272, 570 S.W.2d 615 (1978) and we do not reverse the trial court's findings unless they are clearly against the preponderance of the evidence. Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980).
It must be conceded that at the hearing on the guilty pleas the trial court asked defense counsel if there was a factual basis for the pleas rather than addressing the defendant directly as the rule requires. A.R.Cr.P. Rule 24.6. With that exception the trial court spoke directly to the defendant; he carefully went through each charge, asking the defendant if he understood the charge, if he had any questions about it and how he pled to it. To the extent that the original hearing was deficient, the testimony at the post-conviction hearing established the factual basis for the pleas and that is sufficient. Snelgrove v. State, 292 Ark. 116, 728 S.W.2d 497 (1987); Thomas v. State, supra. Sergeant Dale Best of the Arkansas State Police testified that he arranged for two individuals to place calls to the defendant in California to purchase drugs to be shipped to addresses in Arkansas in exchange for money wired to the defendant by Western Union. The...
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...guilty was intelligently and voluntarily entered, two, were the pleas made on the advice of competent counsel.” Branham v. State, 292 Ark. 355, 356, 730 S.W.2d 226, 227 (1987). Here, based on the record before us, and applying Strickland and its progeny, Mancia does not allege that, but for......
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