Fritts v. State, CR88-169

• Decision Date: 01 May 1989
• Docket Number: No. CR88-169,CR88-169
• Parties: Harvey Merle FRITTS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 541

768 S.W.2d 541

298 Ark. 533

Harvey Merle FRITTS, Appellant, v. STATE of Arkansas, Appellee.

No. CR88-169.

Supreme Court of Arkansas.

May 1, 1989.

Joe O'Bryan, Cabot, for appellant.

Kay J. Jackson DeMailly, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

This case involves the appellant's, Harvey Fritts's, Rule 37 petition wherein he originally alleged that the sentences he received were illegal because they exceed the maximum punishment allowed by law. He also alleged that he was denied effective assistance of counsel. The trial court appointed Fritts an attorney, held a hearing on his petition, and denied the relief requested.

On appeal, Fritts first argues that the trial court had no authority to impose sentences in the manner it did. ¹ In this respect, Fritts entered a negotiated plea of nolo contendere to two counts of attempted first degree murder and one count of aggravated assault in exchange for a recommendation from the prosecutor that he receive forty years. On July 15, 1986, the court sentenced Fritts to thirty years for each count of attempted first degree murder. In order to achieve the forty years to which the state and Fritts agreed, the court split the thirty year term on the second count so that twenty years of it would commence and run concurrently with the thirty year sentence for count one and the last ten years of it would run consecutively to the thirty year sentence on count one. Fritts received a six year term for the assault charge to be served concurrently with the other sentences.

We do not reach the merits of appellant's argument because he failed to raise the issue in a timely fashion. Although he challenges on appeal the manner in which the trial court imposed the terms on the two counts of murder, he never challenged the sentence given him--at least on the basis he now argues--until he filed his Rule 37 petition on January 30, 1987, or five and one-half months after the sentence was imposed. While an aggrieved party can seek at any time to correct a sentence illegal on its face, he or she can only petition to correct a sentence imposed in an illegal manner if such relief is sought and granted within 120 days after the sentence is imposed. See Ark.Code Ann. § 16-90-111(a) and (b)(1) (Supp.1987); see also Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986). ² We note that the sentences given Fritts were clearly within the maximum prescribed by law and not illegal on their face.

Fritts next argues that his attorney was ineffective. He claims that he had valid defenses of voluntary intoxication and diminished mental capacity, and his counsel should have tried the case rather than allow Fritts to plead nolo contendere. Fritts also argues his attorney never explained (1) the range of sentences he could receive, (2) his plea statement, (3) the lesser included offenses with which he could have been convicted and (4) the fact the sentences he received could be either concurrent or consecutive. The record simply fails to substantiate Fritts's claims. Fritts's former attorney testified, and, in doing so, rebutted Fritts's claims. Suffice it to say, the trial court obviously believed the attorney's version. In addition, the attorney's story was supported, in most respects, by the record made at both the plea hearing and post-conviction hearing where Fritts (1) acknowledged his attorney discussed...