Orman v. Bishop, 5296

• Decision Date: 04 December 1967
• Docket Number: No. 5296,5296
• Parties: William ORMAN, Appellant, v. O. E. BISHOP, Supt. of Ark. State Penitentiary, Appellee.
• Court: Arkansas Supreme Court

Page 908

420 S.W.2d 908

243 Ark. 609

William ORMAN, Appellant, v. O. E. BISHOP, Supt. of Ark. State Penitentiary, Appellee.

No. 5296.

Supreme Court of Arkansas.

Dec. 4, 1967.

Butler & Dishongh, Little Rock, for appellant.

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

HARRIS, Chief Justice.

Petitioner, William Orman, on February 21, 1964, entered pleas of guilty to five counts of robbery in the Pulaski County Circuit Court (First Division). The court sentenced Orman to a term of twenty-one years on each of the counts, with the sentences to run concurrently. In April, 1967, Orman filed a 'petition for a Writ of Habeas Corpus,' which we treat as a petition under our Criminal Procedure Rule No. 1. Counsel for petitioner was appointed by the Circuit Court, and a hearing was conducted in May. At the conclusion of the hearing, the court denied the petition, and remanded the petitioner to the custody of the warden of the state penitentiary. From such judgment, appellant (petitioner) brings this appeal.

The petition asserts that appellant was arrested about November 30, 1964, on three charges of robbery, and placed in jail in North Little Rock. It is contended that he was not allowed to contact anyone, nor was he informed of his right to legal counsel, or the right to maintain silence. The petition further alleges that he was threatened and beaten by the police, and told that if he did not sign a statement, his wife (who, according to appellant, had also been arrested) would be given 'time' for the robberies, and he would never leave jail alive. It is then asserted that he signed an incriminating statement, and was removed to the Pulaski County jail in Little Rock, where he subsequently made bond. After three days of freedom, he was again arrested, and two additional charges of robbery were placed against him. It is contended that he was interrogated and threatened by Pulaski County officers. Appellant stated that he entered a plea of not guilty to robbery, but was informed by the court that if he did not plead guilty to the charges, 'he would never get out of jail.' It is contended that he was sentenced without being properly advised of his rights to legal counsel.

These allegations are somewhat at variance with some of the proof offered at the hearing by Orman. He stated that, at arraignment, he entered a plea of not guilty himself, and did not have an attorney. However, he admitted that he had employed an attorney (Charles Scales), but he said that he employed this attorney simply for the purpose of getting the money returned that the officers had taken from him when he was arrested. He did say that Scales had visited him two or three different times while he was in the county jail, and had told him that he should plead guilty to the robbery charges. The evidence reflected that appellant had been charged, along with two other men, James Martin, and John Carson. Orman testified that the court appointed Scales as attorney for the other two men, but did not appoint an attorney for him. According to his testimony, he was beaten with an iron pipe by an inmate in jail, Scrappy Moore, and was taken to the University Hospital, where he remained for a few hours. Orman said that he was told by one of the inmates of the jail that something would happen to him if he didn't plead guilty, and he decided to enter this plea in order to get away from the jail. 'I would rather spend 21 years down there as to be dead.' He insisted that he did not enter a plea of guilty to robbery, but did say that he had entered a plea of guilty as an accessory, not knowing that an accessory was equally guilty with the principal. Orman testified that the Circuit Judge said, 'If you don't plead guilty, I will give you 5 twenty-one year sentences.'

As far as the alleged beatings by the North Little Rock Police are concerned, appellant is entitled to no relief. Officer J. E. Munns, Jr., denied this testimony, stating that not a hand was placed on Orman. Munns testified that appellant stated that he did not want a lawyer, and that the statement Orman made relative to his involvement in the robberies was entirely voluntary on his part. Further, that he had no recollection of Orman's wife being arrested, and, in fact, Orman was permitted to make a phone call to his wife, and she visited him. The officer stated that, though not advising appellant that he could have an attorney, Orman was told that he had a right to remain silent, and that anything he said could be used against him in a court of law. We think the evidence, particularly when we view the inconsistencies in appellant's testimony, preponderates to the effect that he was not mistreated in the North Little Rock jail. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, had not been decided at the time, and thus is not pertinent in this case. Likewise, though alleged in the petition, there is no evidence, including his own testimony, that Orman, after being placed in the Pulaski County jail, was mistreated in any respect by the officers.

Charles Scales, Little Rock attorney, testified that Orman, while out on bond, engaged him to secure the return of some money that had been in his possession when he had been arrested. Scales said that he contacted the Prosecuting Attorney, but was told that the state was going to hold the money as evidence in the cases. He testified that at the time Orman appeared before the court for arraignment, appellant was asked if he had a lawyer, and replied, 'Yes, Charles Scales.' The attorney stated that he was appointed at the time to defend Martin and Carson, and he visited the three of them in jail several times to discuss the charges. From his testimony:

'The best of my recollection is that the matter was set for a jury trial and, lo and behold! then one day I read in the newspaper where Bill Orman had taken 21 years and that was the first time I knew that he intended to come up here and enter a plea of guilty.'

The lawyer emphatically denied that he had ever advised appellant to enter such a plea. In fact, it seemed to be the opinion of this witness that there was a good opportunity to have some of the state's evidence held inadmissible. He said that he had planned on defending Orman before the jury.

H. F. Hemphill, Pulaski County jailer, testified that one morning in February, 1964, he was notified that there was a disturbance in one of the cells, and an investigation revealed that a pipe, which had been used as the handle of a water bucket ² had been used by William B. (Scrappy) Moore in striking Orman. Hemphill testified that Moore said that appellant was bothering 'some old man' in the cell with him, and he (Moore) resented it, and after an argument, Moore pulled the handle (pipe) from the wringer, and struck Orman with it. ³

As heretofore pointed out, we find no merit in the allegations of mistreatment on the part of either the city or county officers, but, relative to the voluntary plea of guilty, which seems to be the principal contention, there is evidence that leaves this particular question in confusion. We refer to the statement of the trial court itself.

'Now I would like to give my recollection about him coming over. Of course, the record shows that on 1--6--64 in those five cases that I mentioned, Orman and Martin and Carson appeared, and the record shows that Orman was represented by Charles Scales, and on that day I appointed Charles Scales to defend Martin and Carson. There was a plea of not guilty entered, passed to the February setting to be reset. Martin went to the State Hospital,...