Thacker v. Urban
| Decision Date | 12 May 1969 |
| Docket Number | No. 5402,5402 |
| Citation | 440 S.W.2d 553,246 Ark. 956 |
| Parties | Thomas E. THACKER, Appellant, v. Victor URBAN, Superintendent, Appellee. |
| Court | Arkansas Supreme Court |
M. C. Lewis, Jr., Hot Springs, for appellant.
Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.
This is a proceeding for post-conviction relief under our Criminal Procedure Rule No. 1. The petitioner, now the appellant, asks that his sentence be vacated and that he be set free. He was sentenced in January 1966 to a term of five years in the state penitentiary upon a plea of guilty to the alleged crime of robbery.
In February 1968 the appellant filed a writ of habeas corpus which the present trial court promptly treated as a petition for post-conviction relief. The court appointed his present counsel who filed an amended petition in appellant's behalf. Subsequently, the court overruled and denied appellant's motion to set aside the denial of appellant's petition for post-conviction relief and accord appellant a new trial. This appeal followed.
The issues on appeal 'involve constitutional grounds including violation of rights, violation of due process, failure to advise of charge on which arrested, failure to advise of rights, denial of rights to bond, failure to have an attorney appointed to represent him or to be represented in competent fashion, and bias and prejudice of the original Judge, P. E. Dobbs.' The present trial judge (who did not preside at the original trial), conducted a fair and extensive hearing on appellant's petition and also upon his motion for a new trial following denial of the petition. The court rendered a comprehensive and thorough opinion in the form of findings of fact and conclusions of law in denying appellant the relief he sought.
Appellant first asserts that due process was denied to him because he was never told for what charge he was being arrested and was never advised of his rights. We do not agree. There was evidence for the trial court to consider that upon being arrested with his codefendant, a brother-in-law, both were identified by the victim as having committed the alleged robbery. Furthermore, on December 1, 1965, the day of his arrest, he was charged by information and accused of the alleged offense of robbery and bail was set. He had the benefit of counsel and never raised this issue at any stage until he initiated this proceeding. He was arraigned and pleaded not guilty on December 6, 1965, with counsel present, and on January 3, 1966 he pleaded guilty with the same counsel representing him, receiving a five-year sentence, along with his brother-in-law and codefendant.
Next appellant argues that he in effect was denied the right to bail or the right to make bond by Judge Dobbs, the then presiding judge. The bench warrant reflects that appellant's bond was set at $4,000 on December 1, 1965. Appellant contends that he could not make bail because Judge Dobbs threatened to raise it if he tried to make bail. This assertion was contradicted and denied by Judge Dobbs and according to the record, the bond remained the same as originally set.
Appellant contends that 'he was denied due process and deprived of a fair trial in that he never retained counsel, none was appointed for him, he never accepted the services of an attorney, and he was not given effective, adequate, and competent legal representation.' The evidence and record are amply sufficient to sustain the trial court's findings to the contrary. The appellant appeared with his codefendant for arraignment before the court on December 6, 1965. Senator Q. Byrum Hurst appeared with appellant and entered a plea of not guilty to the charge of robbery on behalf of appellant and his codefendant. Again, on January 3, 1966, the appellant appeared in open court with Senator Hurst who asked permission of the court to change appellant's plea of not guilty to a plea of guilty to the charge of robbery. Upon the recommendation of the prosecuting attorney, the plea of guilty was accepted and appellant and his codefendant each received a sentence of five years in the state penitentiary on the robbery charge.
There is no evidence that appellant ever indicated during these proceedings that Senator Hurst was not representing him or that his counsel was not satisfactory or that he desired the appointment of counsel. Senator Hurst, who has approximately thirty years experience as a trial lawyer, was retained to represent these defendants by their families the day before their arraignment. He was known to both families for several years and had previously represented some of them. A few days following their arraignment, the mothers of both defendants made a substantial payment on his fee to represent the defendants. His copies of the receipts were introduced into evidence. There was evidence that he conferred with the appellant several times. Senator Hurst testified that his efforts were directed mainly toward working out an acceptable sentence on a plea of guilty. The state desired a 12-year sentence. The defendants' counsel asked for a 5-year sentence with 2 years suspended. After conferences with the prosecuting attorney, it was agreed that the state would recommend a 5-year sentence for appellant and his codefendant upon a plea of guilty. It appears that this was a reluctant agreement on the part of the state as to the appellant because he had three previous felony convictions. These consisted of burglary, forgery and uttering, and theft. His codefendant had none. As was the custom, the trial court accepted the prosecuting attorney's recommendation in assessing the recommended sentences.
The record reflects that appellant's retained counsel continued to follow his case with interest, writing letters in his behalf to appropriate officials. Further, upon appellant's commitment to the penitentiary, a document reflecting his personal history and signed by him shows that the name and address of his attorney was 'Q. Byrum Hurst, Hot Springs, Ark.'. The document further reflects:
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Collins v. State, CR
...or "is otherwise subject to collateral attack." Rule 37.1; Swisher v. State, 257 Ark. 24, 514 S.W.2d 218 (1974); Thacker v. Urban, 246 Ark. 956, 440 S.W.2d 553 (1969); Clark v. State, 242 Ark. 584, 414 S.W.2d 601 (1967). The present petition presents a number of issues all of which are alle......
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Clark v. State
...designed solely to afford a method for collateral attack upon a judgment and sentence upon grounds specified in the rule. Thacker v. Urban, 246 Ark. 956, 440 S.W.2d 553. Furthermore, the procedure followed by the trial court in giving the instruction in question was not disapproved by this ......
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Ruiz v. State, CR
...or "is otherwise subject to collateral attack." Rule 37.1; Swisher v. State, 257 Ark. 24, 514 S.W.2d 218 (1974); Thacker v. Urban, 246 Ark. 956, 440 S.W.2d 553 (1969); Clark v. State, 242 Ark. 584, 414 S.W.2d 601 (1967). Rule 37 was not intended to provide a method for the review of mere er......
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Irons v. State, CR79-179
...before the court. Since appellant entered a plea of guilty, he is precluded from raising a defense on this appeal. Thacker v. Urban, 246 Ark. 956, 440 S.W.2d 553; Cromeans v. State, 242 Ark. 464, 414 S.W.2d 399. The matter of his intoxication was not a matter properly to be considered on a ......