Clark v. State

• Decision Date: 04 September 1973
• Docket Number: No. CR,CR
• Parties: Floyd E. CLARK, Appellant, v. STATE of Arkansas, Appellee. 73--83.
• Court: Arkansas Supreme Court

Page 657

498 S.W.2d 657

255 Ark. 13

Floyd E. CLARK, Appellant, v. STATE of Arkansas, Appellee.

No. CR 73--83.

Supreme Court of Arkansas.

Sept. 4, 1973.

Nicholas Bierwirth, Forrest City, for appellant.

Jim Guy Tucker, Atty. Gen., by James W. Atkins, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant was arrested on the 29th day of September, 1970, and charged with the rape of his eight-year-old stepdaughter. On February 5, 1971, Mr. Henry Wilkinson was appointed to represent the appellant. On February 16, 1971, appellant, having previously entered a plea of not guilty, changed that plea to guilty. A jury impaneled to fix the punishment returned a verdict fixing the sentence at 75 years. The prosecuting attorney, pursuant to an agreement with defense counsel, had waived the death penalty. Appellant's first petition for relief under Criminal Procedure Rule 1, filed on April 22, 1971, was summarily denied. This motion was amended on August 14, 1972. The amended motion was denied after an evidentiary hearing held October 6, 1972. Appellant seeks reversal of the order denying this relief, relying upon the following points:

I. That appellant did not enter the plea of guilty at his trial with full knowledge of the consequences of the plea and should have been granted relief.

II. That the court erred in finding that appellant knowingly, intelligently and voluntarily waived his constitutional rights during the pretrial interrogation stage.

III. That the lower court erred in finding that appellant was effectively represented by counsel.

IV. That appellant was denied due process by the failure of the court to appoint counsel to represent appellant until four months after his arrest and the filing of the information.

V. That the court's instructing the jury on the law of parole prior to any requeat for such information denied appellant due process of law.

We shall discuss these points in the order stated.

I.

Appellant contends that he was misled by his appointed counsel so that he believed that if he entered a plea of guilty, he would receive a sentence that would make him eligible for parole in not more than two years. He aslo complains the trial court took no steps to advise him of the actual consequences of the plea he entered. He contends that this alleged ignorance of the true consequences of his plea rendered it impossible that his plea was entered knowingly, intelligently and voluntarily. In support of this argument he calls our attention to the facts that he only completed the fifth grade in school, that his ability to read and write was very limited and that he had a long history of alcoholism.

The trial court found that: the guilty plea was not the result of any deception or coercion by either the deputy prosecuting attorney or appellant's court-appointed attorney; appellant entered his guilty plea with full knowledge of the impact thereof; at no time did appellant's court-appointed attorney threaten him with the death penalty but only advised appellant that this was a possible punishment, without undue emphasis thereon; and appellant chose to plead guilty of his own free and voluntary will to avoid the possible imposition of such a penalty.

Appellant testified that between the time Wilkinson was appointed and the time of the trial, he saw Wilkinson on a very regular basis, and Wilkinson led appellant to believe he was going to defend appellant strongly, but later informed appellant that there was nothing appellant could do to avoid being found guilty and that if he did not plead guilty he was certain to get the death penalty. Appellant further testified that on the last day before his trial, he decided he was not going to get any help and, since Wilkinson had told him that he could get a lighter sentence which would allow him to apply for parole in no more than two years, he decided to change his plea to guilty.

On the other hand, Wilkinson, called as a witness by appellant, testified that he told Clark that the offense with which he was charged carried a penalty ranging from a minimum of 30 years to the death penalty as a maximum. According to his testimony, when the prosecuting attorney offered to waive the death penalty if Clark entered a plea of guilty, Wilkinson immediately advised Clark, telling him that, in the event he entered a plea of guilty, his punishment would range from 30 years to life inprisonment. He denied threatening Clark with the death penalty or telling him that a plea of guilty would result in his receiving a very light sentence on which he could be paroled in no more than two years. Wilkinson also testified that he informed Clark that the prosecuting attorney would try to get a life sentence upon a plea of guilty and that Wilkinson would try to get a 30-year sentence. According to Wilkinson, appellant's decision to plead guilty was reached several days after communication to appellant of the state's offer.

The case came on for trial prior to our acknowledgment in O'Neal v. State, 253 Ark. 574, 487 S.W.2d 618, that the decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), rendered administration of the death penalty under our existing statutes unconstitutional. The entry of a plea of guilty in order to avoid the possibility of a death penalty is not, in and of itself, an involuntary plea. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The question here is whether the guilty plea was entered intelligently and voluntarily with the advice of competent counsel. Insofar as the advice of counsel is concerned, the burden was upon appellant to show that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases. Horn v. State, 254 Ark. 651, 495 S.W.2d 152; Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). There was ample basis for a finding by the trial court that appellant had failed to meet has burden of overcoming the presumption of competence of counsel. We are certainly unwilling to say that the circuit judge was not justified in accepting the version of appointed counsel over that of appellant in finding that appellant was fully informed as to the impact of his plea of guilty and its potential consequences. The record discloses that appellant affirmatively answered his attorney's open-court inquiry whether his plea to the charge was guilty. It would certainly be the better practice for the trial judge, upon the entry of a plea of guilty, to address inquiries to the defendant himself in order to establish beyond doubt that the plea is knowingly, intelligently and voluntarily made and to inform the defendant of the possible consequences of such a plea. His failure to do so in a particular case does not render the plea and the sentence thereon subject to collateral attack for constitutional infirmities, if the record otherwise affirmatively discloses or it is otherwise shown that the plea was entered understandingly and voluntarily.

II.

Appellant contends that a statement given by him to the deputy prosecuting attorney and police afficers as a result of pretrial interrogation was involuntary because he had not knowingly, intelligently and voluntarily waived his constitutional guaranties against self-incrimination and of right to counsel. His argument is based largely upon his contention that his waiver could not have been knowingly and intelligently made because he did not understand, and was not capable of understanding, the explanation of these rights. He contends that he was unable to understand because of his deep distress resulting from the accusation made against him, his inability to read or write and his affliction with alcoholism for a great period of time prior to his arrest. Appellant argues that his alcoholism so affected his mental processes that he was not able to understand or appreciate the meaning of what was taking place around him.

In support of this allegation, Clark testified that he was half drunk when arrested and taken to the jail, where he was interrogated by Mr. Fletcher Long, Jr., deputy prosecuting attorney and Sgt. Billy Joe Baker, a state police investigator. He admitted having signed two papers, which he said were not explained to him. Clark said he was led to believe that he was helping himself by giving a statement of events of which he knew, that Mr. Long was the best lawyer he could have, that the signing of the waiver of his rights was just a technicality. He admitted that the waiver was read to him, but testified that he was not told that he had a right to remain silent, that anything he said could be used against him in court of that he had a right to advice of counsel before interrogation. He expressed the belief that he signed the statement before he signed the waiver, but professed inability to remember who explained the waiver to him and attributed his memory difficulties to his drinking problem. He explained his failure to raise any question about the truth or the voluntary nature of his statement to advice he claimed that his lawyer had given him to keep his mouth shut unless he wanted to get the death penalty. He admitted that he understood the content of the statement. His mother testified that Clark called her from the jail...