Stone v. State, CR--73--19

• Decision Date: 28 May 1973
• Docket Number: No. CR--73--19,CR--73--19
• Citation: 254 Ark. 566,494 S.W.2d 715
• Parties: Harold Ray STONE, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 715

494 S.W.2d 715

254 Ark. 566

Harold Ray STONE, Appellant, v. STATE of Arkansas, Appellee.

No. CR--73--19.

Supreme Court of Arkansas.

May 28, 1973.

Nolan, Alderson & Jones by Wm. C. Nolan, Jr., El Dorado, for appellant.

Jim Guy Tucker, Atty. Gen. by O. H. Hargraves, Deputy Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

This is a petition for postconviction relief under Criminal Procedure Rule 1. The petitioner, charged with first degree rape (then a capital offense), entered a negotiated plea of guilty to second degree rape and was sentenced to confinement for 21 years. He now asserts that his plea of guilty was motivated by fear, in that his court-appointed counsel told him that if he resisted the charge of first degree rape he would probably receive the death sentence. The trial judge denied the petition without an evidentiary hearing, holding, under Rule 1(C), that the record made when Stone pleaded guilty showed conclusively that his plea was voluntary. The principal issue here is whether a hearing should have been ordered.

Stone was accompanied by his counsel when he pleaded guilty to second degree rape. The trial judge, before accepting the plea, questioned Stone in detail. Stone assured the court that his plea was voluntary, that there had been no duress, threat, enticement, or promise of reward, that he had discussed the matter with his two court-appointed attorneys and was satisfied with their services, that he knew that he was waiving his right to a jury trial, and that he understood the terms of the negotiated plea.

We quote the allegations of Stone's petition, with respect to the point now at issue:

'That the court-appointed counsel, Winston Byron Thomason, was incompetent in as he refused to ask the Court for a change of venue. Counsel further stated that if he fought the case, he, the Defendant, would probably end up with the electric chair. That the only choice he the defendant had, was to take a twenty-one (21) year sentence. After several conferences between my court-appointed counsel and the Prosecuting Attorney, portions of which were relayed to me by my court-appointed attorney in behalf of the Prosecuting Attorney, I was placed in such fear as to be (un)able to adequately confer and consult with my court-appointed attorney, due to the undue pressure brought to bear upon me by the Prosecuting Attorney and counsel.'

We have considered similar situations in earlier cases, but none of our prior opinions is so directly in point as to be controlling. In Cullens v. State, 252 Ark. 995, 482 S.W.2d 95 (1972), we directed that an evidentiary hearing be held, but the record made when the plea of guilty was accepted in that case was not as comprehensive as it is in the case at bar. In fact, we stated that the record would have been much clearer if the trial judge had inquired of the accused if he was satisfied with the services of his attorney. That inquiry was made here. In a later case, Stallins v. State, 254 Ark. ---, 491 S.W.2d 788 (1973), we sustained the trial court's refusal to order an evidentiary hearing, saying: 'Before accepting the plea and sentencing appellant to twenty years in the Department of Corrections, the trial court not only satisfied himself that appellant was voluntarily pleading guilty to a crime he had committed but caused a record to be made of the proceedings had. This record clearly demonstrates that there is no merit to the many contentions that appellant now makes.'

The pivotal question in the present case is whether the allegations in Stone's petition which we have quoted, contain sufficient statements of fact to raise substantial doubt about the voluntary nature of his plea, in view of the record that was made when the plea was entered. In studying that question we have been enlightened by two recent decisions construing the federal statute, which, like our Rule 1, contemplates the denial of a postconviction petition when the record shows conclusively that the prisoner is entitled to no relief. 28 U.S.C. § 2255.

In Fontaine v. United States, --- U.S. ---, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973), the petition contained detailed statements of fact describing events pertinent to the petitioner's...