Orman v. Bishop, 5369

• Decision Date: 23 December 1968
• Docket Number: No. 5369,5369
• Parties: William ORMAN, Appellant, v. O. E. BISHOP, Superintendent, Arkansas State Penitentiary, Appellee.
• Court: Arkansas Supreme Court

Page 440

435 S.W.2d 440

245 Ark. 887

William ORMAN, Appellant, v. O. E. BISHOP, Superintendent, Arkansas State Penitentiary, Appellee.

No. 5369.

Supreme Court of Arkansas.

Dec. 23, 1968.

Terral, Rawlings, Matthews & Purtle, Little Rock, for appellant.

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

FOGLEMAN, Justice.

This is a sequel to Orman v. Bishop, 243 Ark. 609, 420 S.W.2d 908. There we remanded appellant's petition for post-conviction relief. We found that there was a question of fact as to whether appellant voluntarily changed his pleas from not guilty to guilty on five counts of robbery. Since the trial judge had not made specific findings on this point, as required by Criminal Procedure Rule I, and his testimony on this critical point was important, we directed a hearing by another judge on remand. After a hearing by a circuit judge assigned to the Pulaski Circuit Court for this purpose, appellant was again denied relief. He brings this appeal, relying upon the following points:

'I. That petitioner's constitutional rights were violated by prolonged detention before being charged.

II. Petitioner's constitutional rights were violated by the hearing on his plea without the presence of his attorney.

III. Petitioner's plea of guilty was entered as a result of duress and at a time when he did not fully understand the results of the plea.'

At the second hearing the matter was submitted to the judge on assignment upon the record made in the previous hearing, together with the testimony of the petitioner and five other witnesses, some of whom also testified at the previous hearing. One of the witnesses was Judge William Kirby, the judge presiding when appellant's pleas of guilty were accepted. The testimony taken at the second hearing is substantially the same as that given at the first hearing. The testimony of the trial judge is virtually identical with the statement he made at the first hearing. Consequently, we will not set out the testimony at length, but will only refer to such of it as may be necessary in considering the points urged by appellant.

POINT I.

This point has not been raised at any stage of the proceeding prior to the filing of appellant's brief on appeal. Even though it involves an assertion that constitutional rights of an appellant were violated, it cannot be raised for the first time on appeal. Silas v. State, 232 Ark. 248, 337 S.W.2d 644, cert. denied 365 U.S. 821, 81 S.Ct. 705, 5 L.Ed.2d 698; Clayton v. State, 191 Ark. 1070, 89 S.W.2d 732. Even if the question had been properly raised, we find no merit in the argument. It is based upon the fact that appellant was subjected to in-custody interrogation while held in the North Little Rock jail from 8 p.m. on Tuesday until 9 p.m. on Saturday without being charged. This was in November and December of 1963, so the Escobedo ¹ and Miranda ² decisions have no bearing on this case. Swagger v. State, 227 Ark. 45, 296 S.W.2d 204, cited by appellant, has no proper application to the facts here. That case involved an indigent, illiterate minor whose conviction on a plea of guilty was set aside because he was deprived of due process because of the failure of the court to appoint counsel before the plea was accepted. The few days of detention of Swagger was only a minor incidental fact considered by the court in arriving at its holding. The trial judge made specific findings here that petitioner was not denied the right to remain silent and was advised of the probability that anything he might say would be used against him. He made the further finding that appellant voluntarily, expressly, knowingly and understandingly waived the right to counsel and gave a voluntary statement that was not used against him. There is substantial evidence to support these findings. We have previously found that the evidence preponderates against appellant as to mistreatment by officers while in the North Little Rock jail. Orman v. Bishop, 243 Ark. 609, 420 S.W.2d 908. We find no reversible error on this point.

POINT II.

Orman was brought before the court as the result of a message from him to the judge indicating that he wanted to change his pleas.

On this point, Judge Kirby testified, in substance: After being advised of Orman's desire, the judge interrogated him about the identity of an assailant. This questioning was provoked by appellant's appearance which obviously indicated that he had been beaten. Orman refused to disclose this information, in spite of the judge's promise that the person named would be charged with assault with intent to kill. Orman wanted to enter pleas of guilty, go to the penitentiary and get it over with. The judge was reasonably certain that he asked Orman where his lawyer was.

In spite of the fact that Orman had advised the judge that Charles Scales was his lawyer and Scales had consulted with Orman several times, there is no indication that Orman ever asked for, or had, any consultation with Scales about the change of his plea at any time. Although Scales denied that he ever advised Orman to plead guilty, on the first hearing Orman testified to the contrary. On the second hearing, Orman stated only that he does not...