Cox v. State
| Decision Date | 08 October 1973 |
| Docket Number | No. CR,CR |
| Citation | 499 S.W.2d 630,255 Ark. 204 |
| Parties | Jimmy Wayne COX, Appellant, v. STATE of Arkansas, Appellee. 73--86. |
| Court | Arkansas Supreme Court |
Jimmy L. Featherston, Murfreesboro, for appellant.
Jim Guy Tucker, Atty. Gen., by O. H. Hargraves, Deputy Atty. Gen., Little Rock, for appellee.
Jimmy Wayne Cox, appellant herein, on September 22, 1972, entered a plea of not guilty to a charge of burglary and grand larceny; however, on October 3, 1972, Cox, being represented by a retained attorney, changed his plea, entering a plea of guilty to the offenses charged and with being an habitual criminal. The Pike County Circuit Court sentenced Cox to twenty-one years for burglary and twenty-one years for grand larceny, the sentences to run concurrently. Approximately two weeks later, appellant prayed for an appeal from the sentence imposed, this being denied by the circuit court because of the plea of guilty. In November and December appellant filed petitions for a Writ of Habeas Corpus and for a hearing under Criminal Procedure Rule I, alleging that his guilty plea was entered under duress; that the State failed to show a prima facie cause for arresting him; that he had been arrested on a misdemeanor charge and evidence obtained from an illegal search of his automobile resulted in the felony charges. A hearing was granted, and conducted on January 30, 1973, petitioner being represented by court-appointed counsel, the court pointing out, however, that it was only going to hear evidence on the allegation that the guilty plea was entered under duress. Evidence was taken and the petition was denied, and from the order denying relief, appellant brings this appeal.
Cox testified that he thought he would get a lighter sentence when he pleaded guilty, although he admitted that his attorney told him that he didn't know what amount of time he would receive; he also stated that the 'had no idea' what sentence he would receive. Subsequently, however, he stated that he had been informed on the same morning of the sentencing that he was going to be sentenced to twenty-one years. 1 He also testified that he was placed under duress because he had learned that his brother, Jester Cox, would testify that he (Jester) had received the two guns, which had been stolen, from him (appellant), and he also stated that knowing that he would be sentenced as an habitual criminal placed him under duress. His testimony relative to this last is rather jumbled and it is not at all clear how this charge placed him under duress to plead guilty. Cox admitted that he was told that he was entitled to a jury trial. To practically every question asked by the court as to the proceedings on the date the plea was entered, appellant would simply answer that he was under duress. Jester Cox testified that he too was charged with burglary and grand larceny, and had originally told officers that he bought the two guns from a man on the highway, but after being told that 'wouldn't work', changed his statement and implicated his brother. He said that he had stated he received the guns from his brother, but that actually he bought them from a man in Oklahoma. Jester Cox had received a three year suspended sentence. Retained counsel for Jimmy Wayne testified that the latter was advised of all of his rights and that appellant had told him in the presence of his brother that he desired to change his plea to guilty.
The record of the proceedings makes it quite clear that Cox was advised by the trial court of his right to a trial by jury, was advised that he was entering a plea of guilty to burglary and grand larceny as an habitual criminal, with the court specifically mentioning that it was alleged that he previously had been convicted of four of more felonies.
We very quickly hold that there is no showing that appellant entered his plea under duress. There is no proof, nor allegation, that he was 'pressured' into entering the plea by any sheriff or policeman, member of the prosecuting attorney's office, his own counsel, or the court. It is not asserted that he was under duress from his brother, or any other individual. It simply appears that Jimmy Wayne decided the advisable thing to do was to plead guilty. Of course, there are many reasons why one may decide to plead guilty; he might learn that several persons that he had not known about had witnessed the commission of the felony; he might discover, contrary to his original belief, that he could be positively identified as a participant in the crime, etc. The fact that another participant in the crime, even a broher, decides to change a plea of not guilty to guilty certainly does not establish duress, although it may well influence a defendant to change his plea. After all, it is to be doubted that any defendant would enter a plea of guilty if he thought he would be acquitted by a jury, or even if he thought he would receive a lesser punishment. So--it may well be that the brother's statement that he had received the guns from appellant, and the fact that he was charged with being an habitual offender, could have carried some weight in appellant's deliberations of whether a plea should be entered--but, as stated, there is not a line of evidence that anyone pressured Jimmy Wayne Cox into entering a plea; it seems entirely clear that this was his own decision.
As to his argument that an illegal search was made of his car, we have held repeatedly that a plea of guilty, which was not coerced of obtained under duress, waived any defenses that might have been interposed on trial. In Rimmer v. State, 251 Ark. 444, 472 S.W.2d 939, this court said:
See also Treat v. State, 253 Ark. 367, 486 S.W.2d 16, where an argument somewhat similar to the one here presented was mentioned by this court. We said:
It is next argued that there were only two lawful prior offenses...
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