Smith v. State

• Decision Date: 09 October 1978
• Docket Number: No. CR78-35,CR78-35
• Citation: 264 Ark. 329,571 S.W.2d 591
• Parties: Clark SMITH, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 591

571 S.W.2d 591

264 Ark. 329

Clark SMITH, Appellant, v. STATE of Arkansas, Appellee.

No. CR78-35.

Supreme Court of Arkansas, In Banc.

Oct. 9, 1978.

Bill Clinton, Atty. Gen. by Jesse L. Kearney, Asst. Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

This is a postconviction proceeding under Criminal Procedure Rule 37. On December 27, 1976, the appellant, Clark Smith, pleaded guilty to two charges of burglary and two charges of theft. He was sentenced to ten years' confinement with three years suspended.

In March, 1977, Smith filed a handwritten petition for Rule 37 relief. After an attorney had been appointed for him three amendments to the petition were filed. A full evidentiary hearing was held on December 22. The court denied the petition, but failed to make written findings of fact and conclusions of law as required by Rule 37.3(c). This appeal was originally from that denial of relief, but as we shall see, that part of the appeal has been abandoned.

A week after the appeal had been filed in this court, the appellant obtained permission to file in the trial court a fourth amendment to his petition. That amendment was filed after we had reinvested the trial court with jurisdiction for that purpose. This appeal, as it has been developed by counsel, is now only from the trial judge's denial, without an evidentiary hearing, of the fourth amended petition.

The entire progress of the case is pertinent to a full understanding of the issue presented. After the informations had been filed, Bob Alsobrook was appointed as Smith's attorney and appeared with him to enter a plea of not guilty. After Phillip Shirron had been appointed in place of Alsobrook, the plea was changed to that of guilty. In accepting the plea of guilty the trial judge wholly failed to ascertain whether it was voluntary, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Byler v. State, 257 Ark. 15, 513 S.W.2d 801 (1974); and Criminal Procedure Rule 24. We quote the record of the pertinent proceedings when the plea was accepted:

The Court: Mr. Shirron, do you feel like this Defendant is prepared to plead?

Mr. Shirron: Yes, I do, your Honor.

The Court: I feel sure that Mr. Shirron has explained to you all your constitutional rights and the effect of a plea. I ask you, Smith, how do you plead to the charge of burglary and theft, guilty or not guilty?

Defendant: Guilty.

The Court: Does the State have any recommendation it would like to make to the Court?

Mr. Scrimshire: Yes, Sir. The State recommends ten years in the penitentiary with three suspended.

The Court: It will be the judgment of this Court you be sentenced to a term of ten years in the penitentiary, and I will honor the State's recommendation and agree to suspend three years of that. He is yours, Mr. Sheriff.

Less than three months later Smith, as a prisoner, filed his first petition for postconviction relief. He alleged that his attorney had led him to believe that by pleading guilty he would receive a lesser sentence and that the court failed to tell him that it refused to go along with the original agreement until after he pleaded guilty. Donald M. Spears was then appointed as Smith's counsel. Spears's first amendment to the petition alleged that the plea of guilty was induced by the promise by members of the sheriff's department that Smith would not have to serve his sentence, but would be sent to a rehabilitation center instead. Spears's second amendment alleged that Alsobrook had been relieved at a critical stage of the proceedings without Smith's knowledge or consent, denying him his right to effective counsel. Spears's third amendment alleged that the sheriff's office had obtained statements from Smith by threat, coercion, and hope of reward, and that the statements should not be admissible against Smith.

At the evidentiary hearing Smith was represented by Spears. Several witnesses were called by the petitioner, including two members of the sheriff's department. Smith also testified. His testimony was almost entirely to the effect that he signed two confessions because he thought he would be sent to a rehabilitation center. In response to a final leading question he said that he pleaded guilty because he thought he had to in order to go to the rehabilitation center. It may be noted that he did not deny his guilt, that he said nothing about his understanding of a plea bargain or even that there had been such a bargain, and that he did not say that he did not fully understand his rights when he pleaded guilty. After the hearing the court denied the petition, but made no findings of fact or conclusions of law.

Smith filed his own notice of appeal from the order, and a fourth attorney, Orville Clift, was appointed for the appeal. Mr. Clift associated with him a fifth attorney, Kenneth S. Gould, whose signature to pleadings identifies him as an associate professor of law and Director of Clinical Programs at the University of Arkansas law school at Little Rock.

Seven days after the record was filed in this court counsel asked permission to file a fourth amendment to Smith's petition. Since such an amendment should be filed in the trial court, we reinvested that court with jurisdiction. At that time, of course, we had no knowledge of the prior proceedings.

The amendment pointed out the trial court's failure, in accepting the plea, to comply with Boykin, Byler, and Rule 24. The pivotal assertion in the amendment is this sentence: "The failure of the court to comply with the constitutionally mandated requirements of a trial judge in accepting pleas of guilty resulted in Petitioner's plea being an involuntary plea of guilty and abridged Petitioner's rights under the United States Constitution and under the Rules of Criminal Procedure of the State of Arkansas." The pleading then went on to say that the failure of counsel to raise this question at the December 22 evidentiary hearing constituted a denial of effective assistance of counsel. When the trial court denied the amended petition, without a hearing, a second notice of appeal was filed, and in due course the case was briefed in this court.

We emphasize at the outset counsel's failure in their brief in chief to make any argument whatever that the trial court erred either in denying relief after the evidentiary hearing or in failing to make written findings and conclusions. An issue not argued on appeal is waived. Cowger v. Mathis, 255 Ark. 511, 501 S.W.2d 212 (1973). The court's failure to make findings is mentioned, merely in passing, in the reply brief, but that comes too late. Ryall v. Waterworks Imp. Dist. No. 3, 247 Ark. 739, 447 S.W.2d 341 (1969).

There remains only the allegation that we have quoted, which states in effect that the court's failure to comply with "the constitutionally mandated requirements" In itself results in the plea of guilty being involuntary.

That position cannot be sustained. There is no constitutional requirement that the trial judge make the explanation required by Boykin. See Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). As the Court of Appeals stated in United States v. Pricepaul, 540 F.2d 417 (9th Cir. 1976):

Subsequent federal court decisions have made clear, however, that a plea-taking record silent about Boykin rights does not require automatic reversal; the prior conviction may stand if it is proved at a postconviction evidentiary hearing that the plea was voluntary and intelligent.

To the same effect is this statement by the Eighth Circuit Court of Appeals in Todd v. Lockhart, 490 F.2d 626 (1973):

Since we believe that as a constitutional matter the question is whether the plea was voluntary and intelligent, we agree with a number of other courts which have held that a state may, in a state post-conviction hearing, . . . cure the otherwise defective plea-taking transcript.

(The opinion in Todd does not disclose what allegations in the federal habeas corpus petition led to the granting of a second evidentiary hearing.)

Thus the true substantive question is not whether the trial court complied with Boykin Byler, and Rule 24, but whether the plea of guilty was in fact intelligently and voluntarily made. At the December 22 hearing the trial court considered that very question upon a petition, with amendments, asserting some five different issues of fact going to the validity of the plea. The court upheld the plea. The correctness of that decision is not questioned.

All we have left is a conclusion of law, that the court's failure to comply with Rule 24 resulted in the plea's being involuntary. During recent years we have repeatedly denied postconviction petitions because the allegations were merely conclusory. Stone v. State, 254 Ark. 566, 494 S.W.2d 715 (1973); Cooper v. State, 249 Ark. 812, 461 S.W.2d 933 (1971). Such cases are controlling here.

Indeed, this record discloses three separate examples that confirm the necessity for requiring allegations of fact, not conclusions of law. First, attorney Spears alleged several different reasons for postconviction relief, but he did not include the trial judge's failure to comply with Rule 24. We assume, in the absence of contrary allegations of fact, that he consulted with his client and concluded that no additional grounds for relief could be supported by his client's testimony under oath. Second, attorneys Clift and Gould elected not to ask that this cause be remanded to the trial court for findings and conclusions or to argue that the trial court's decision after the evidentiary hearing was wrong. Here we have the record before us and know, without any assumptions, that counsel's decisions were well taken and do not represent ineffective assistance of counsel on their part. Third, attorneys Clift and Gould chose to plead only a conclusion of law in their final amendment to the petition. Again we may fairly assume that this omission...