Rogers v. State

• Citation: 582 S.W.2d 7,265 Ark. 945
• Decision Date: 11 June 1979
• Docket Number: No. CR74-59,CR74-59
• Parties: Harold Eugene ROGERS, Petitioner, v. STATE of Arkansas, Respondent.
• Court: Arkansas Supreme Court

Page 7

582 S.W.2d 7

265 Ark. 945

Harold Eugene ROGERS, Petitioner, v. STATE of Arkansas, Respondent.

No. CR74-59.

Supreme Court of Arkansas, In Banc.

June 11, 1979.

George Howard, Jr., Pine Bluff, for petitioner.

Steve Clark, Atty. Gen., Little Rock, for respondent.

PER CURIAM.

Petitioner Harold Eugene Rogers was convicted by a jury of rape and was sentenced to life imprisonment in the Arkansas Department of Correction. We affirmed, Rogers v. State, 257 Ark. 144, 515 S.W.2d 79 (1974), and the Supreme Court of the United States denied certiorari, Rogers v. Arkansas, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975). Several years later petitioner filed a petition for writ of habeas corpus in the United States District Court, Eastern District of Arkansas, alleging, Inter alia, the allegations contained in his present petition filed in this Court. The district court dismissed with prejudice petitioner's claims attacking his conviction; however, the court reserved its ruling regarding petitioner's claim attacking his sentence, pending the outcome of his application to state courts, for failure to exhaust state remedies. 28 U.S.C.A. § 2254(c). On April 13, 1979, petitioner filed his present petition for permission to proceed in circuit court under Criminal Procedure Rule 37 for postconviction relief in this Court presenting a two-pronged argument attacking the validity of his sentence. Petitioner invokes jurisdiction under Rule 37.2(a), Rules of Criminal Procedure (1976) and the opinion and order of the United States District Court dated March 7, 1979, which is attached as an exhibit. Petitioner's application for postconviction relief is denied for the reasons hereinafter discussed.

On December 18, 1978, we amended Rule 37.2, Rules of Criminal Procedure, by adding the following:

(c) A petition claiming relief under this rule must be filed in circuit court or, if prior permission to proceed is necessary as indicated in paragraph (a), in the Supreme Court within three (3) years of the date of commitment, unless the ground for relief would render the judgment of conviction absolutely void.

The basis for the promulgation of this rule at once becomes obvious upon the filing of the present petition. The information recites that the rape occurred on October 31, 1972. Petitioner was sentenced and committed on November 5, 1973. More than five years have passed since petitioner's commitment, and it has been almost four years to the day since the United States Supreme Court denied certiorari, Rogers v. Arkansas, supra. We take judicial notice of the fact that the circuit judge who presided over petitioner's trial, Honorable Paul Wolfe, is deceased and, therefore, is unavailable to testify regarding petitioner's allegations. If a grave injustice was committed, why did petitioner wait so long to file his petition? Petitioner is not claiming relief under some new law that has been applied retroactively but his allegations could easily have been raised five years ago in a motion for new trial. He could have filed his petition for postconviction relief as soon as the mandate affirming the judgment was issued by this Court. We would be hesitant to encourage the practice of vacating judgments upon the basis of allegations relating to matters that cannot be defended against, not because of substance or truth but because witnesses are unavailable, memories are faulty and, in some cases, records are destroyed, when a petitioner waits an Unnecessary and Unexplained length of time to file his petition. However, due to the fact that petitioner's allegations can be disposed of by reading the record and our original opinion, Rogers v. State, supra, and applying existing state law, we address the substance of the allegations. However, we question the invoking of jurisdiction in this Court on the basis of the order of the United States District Court.

We also note at the outset that the record discloses that petitioner was represented at the trial, which extended over a seven-day period, by three capable and competent attorneys, two of which continue to represent petitioner in this proceeding. The transcript contained 951 pages.

Petitioner first alleges that, prior to sentencing, the trial court failed to afford his right to allocution, as provided in Ark.Stat.Ann. § 43-2303 (Repl.1977). We disagree.

Ark.Stat.Ann. § 43-2303, Supra, provides:

Proceedings before pronouncing judgment. When the defendant appears for judgment, he must be informed by the court of the nature of the indictment, his plea and verdict thereon, if any; and he must be asked if he has any legal cause to show why judgment should not be pronounced against him.

We have held that failure of the trial court to afford the right of allocution is error. Tate v. State, 258 Ark. 135, 524 S.W.2d 624 (1975) and Smith v. State, 257 Ark. 781, 520 S.W.2d 301 (1975). However, in this case petitioner was afforded the opportunity to address the court before sentencing, and we find the procedure used was in substantial compliance with Ark.Stat.Ann. § 43-2303, Supra. After the jury returned its verdict, the following transpired:

THE COURT: Mr. Howard, Mr. Myerson, and Mrs. Miller, what I have in mind at this moment is under the law a defendant, after a jury trial and finding of guilty, is entitled to forty-eight hours, I believe it is, from the time of the announcement of the verdict to the time of sentencing. I am wondering, in view of the fact that each of you are from a distant place, if you would desire to waive that forty-eight hour period and have the sentence imposed at this time.

MR. HOWARD: May I confer with my associates.

THE COURT: Yes, sir.

MR. HOWARD: If it pleases the Court, I have checked with my associates, I have also checked with the defendant and I checked with his mother and grandmother. At this time it is the desire of all concerned to have the Court impose sentence at this time, and we would therefore waive the forty-eight hours.

THE COURT: Thank you, Mr. Howard. Mr. Rogers, would you and your attorneys please come before the Court? Mr. Rogers, you have heard the verdict of the jury, and it now becomes my duty, as you understand, to impose sentence in conformity with the verdict of the jury. I would ask you first if you have anything to say before sentence is pronounced?

MR. ROGERS: No, sir.

THE COURT: I do wish to note at this time that throughout the past week, as we progressed with this trial, and today and at the moment, that I have observed Mr. Rogers' behavior. I feel that he has shown perfect composure and understanding of this situation and the proceedings. That is, I feel that you understand what this has all been about throughout. Am I correct in this, Mr. Rogers?

MR. ROGERS: Yes.

THE COURT: I would ask counsel if they've seen anything to the contrary.

MR. HOWARD: We have not.

THE COURT: You have nothing to say of record before sentence is pronounced, and it is therefore my duty to say, sir, that having been found guilty as charged, that it is the judgment and sentence of the Court that you serve in the State Penitentiary under the Department of Correction for the State of Arkansas, for the period of your natural life. Mr. Rogers, you know, I'm sure, that you have a right to appeal this verdict, this judgment, this sentence that you received here today. And I'm glad you have such fine counsel. And I would like to compliment each of you, Mr. Howard, Mrs. Miller and Mr. Myerson, for the fine manner in which you have represented Mr. Rogers. Mr. Rogers, regardless of everything you owe a debt of gratitude to these three people who have endeavored so much in your behalf. Do you agree with me about this?

MR. ROGERS: Yes.

The sentencing procedure in this case is remarkably similar to the procedure in our recent case of Clark v. State, 264 Ark. ---, 573 S.W.2d 622 (1978). In Clark appellant was convicted of two counts of capital felony murder and sentenced to death by electrocution. On appeal he alleged he had been denied his right to allocution. After the verdicts were returned, the trial court had asked appellant: " 'Do you have anything that you wish to say?' " After a discussion about appeal, the court then inquired: " 'You understand everything that is going on?' " When appellant responded affirmatively, the court pronounced sentence. Holding appellant had demonstrated no prejudicial error regarding allocution, we stated:

The purpose of a statute such as ours is to give the accused, upon sentencing, an opportunity to show any cause why sentence should not be pronounced. Where a question is addressed to the defendant which affords him an opportunity to express why sentencing should not be pronounced, it is unnecessary that the precise language of the statute be used. (Citations omitted) Here the question asked by the court upon sentencing of the appellant gave him the unfettered right to state any cause, legal or otherwise, as to why sentence should not be pronounced. The appellant's response was not restricted in any manner.

For the reasons enunciated in Clark coupled with the fact that the trial court afforded petitioner with more than ample opportunity to be heard, we find that petitioner was not denied his right to allocution.

Furthermore, as we also noted in Clark, petitioner was present with counsel at sentencing, and there was no objection raised to the procedure. In addition, no objection was raised by motion for new trial or on direct appeal. Even now petitioner has failed to allege the Cause of his failure to object to the procedure employed by the trial court and to demonstrate the Prejudice that resulted, which are required when raising an underlying constitutional issue for the first time in a postconviction proceeding when no objection was raised at trial. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Petitioner does not, even now, state what he desired to have presented to the trial court.

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