This is an appeal from a Criminal Procedure Rule 1 hearing denying appellant release from the Arkansas penitentiary.
The appellant, Jimmy Blake, is sixteen years of age, had less than a fifth grade education, and is one of ten children whose father does common labor at a mill and whose mother works in a laundry.
Appellant's first brush with the law came in 1965, when he was sent to the Boy's Industrial School from Woodruff County Juvenile Court. The instant appeal involves three cases in the White County Circuit Court.
In July 1966, in case number 2132, appellant was charged with burglary, petit larceny, and car theft. At the Rule 1 hearing, appellant testified that he could not read or write, but that he made a statement to
During this absence from the Industrial School in January 1967, he was arrested and charged in case number 2142 with five counts each of burglary and petit larceny and two counts of grand larceny. Appellant made an oral statement to the arresting officers admitting his guilt to these charges and by appointed counsel, he entered a plea of guilty at his trial. He was sentenced to ten years on each of the five counts of burglary, sentences to run concurrently. The sentences were again suspended and appellant was again returned to the Boy's Industrial School, from which he escaped again after about three weeks.
While absent from the Industrial School this time, appellant was arrested in March 1967, and charged in case number 2151 with burglary, grand larceny, and petit larceny. Once again he made an oral statement to the arresting officers and pleaded guilty by appointed counsel. He received a sentence of two years on each of two counts of burglary and one on grand larceny, sentences to run consecutive to each other and consecutive to the sentences in cases number 2132 and 2142. This sentence in case number 2151 was suspended, but the suspension of sentence in cases number 2132 and 2142 was revoked and appellant was sent to the penitentiary. Thus, at present, appellant is serving 17 years as sentenced in 2132 and 2142, and has five years suspension remaining in case number 2151.
In July 1967, appellant testified at his Rule 1 hearing where he was represented by appointed counsel. From the petition, the testimony of appellant, the testimony of the sheriff of White County, and the testimony of the counsel appointed for appellant in his prior trials, together with all matters appearing of record, including the docket sheets and files in the circuit clerk's office, and after argument of counsel, the trial court denied relief, from which this appeal is brought. For reversal, appellant relies upon five points:
As to the first point argued by appellant, we find no merit. Though appellant denies being advised of his rights, the trial court found, and the sheriff of White County who arrested appellant testified, that appellant was advised of his rights on each occasion and that appellant was
Appellant's second point is also without merit. We agree that the docket entry does not reflect that appellant had counsel in case number 2132 and that it is not shown in the record who that counsel was, but the appellant himself testified on direct and on cross-examination that counsel was appointed for him in that case about three weeks after his arrest, and that the counsel was present in the court room when he entered a plea of guilty. The trial court found as a fact that appellant had counsel in all three cases and this is supported by the evidence.
Appellant's third point is also to no avail. As to the issue of whether he had counsel at the critical stages, we reiterate our holding, supra, that Escobedo and Miranda do not apply where the confession is not considered or introduced against the defendant in a trial. On the issue of whether appellant had effective benefit of counsel after counsel was appointed, the record shows that attorneys were appointed for appellant on the same date as his plea of guilty was made and sentence pronounced. We agree that under the facts and circumstances of a particular case, this might amount to a failure of effective benefit of counsel, but we do not agree that this is the situation here. The attorneys in the prior cases testified that they discussed the respective cases with the appellant, his parents, the prosecutor, and the court in chambers; that they felt that they did what was best for appellant; that they fully explained the charges to the appellant and his parents, and that appellant and his family were satisfied that a guilty plea was best. Under these facts and circumstances, we cannot see where advice to plead guilty would not be effective benefit of counsel, even if the attorney felt that the appellant's confession would be inadmissible.
We find no merit in the fourth point relied upon by appellant. While appellant testified that the sheriff and appellant's attorneys promised him a certain sentence if he would plead guilty, the record indicates that the attorneys and prosecutor only stated that, in their opinion and with their recommendations to the court, appellant would get a shorter sentence or be sent to the Boy's Industrial School on a plea of guilty. The sheriff, in his testimony, flatly denied that he advised appellant to plead guilty or that appellant would receive a certain sentence for a plea of guilty. The trial court found against appellant on this issue and this finding of fact is supported by the evidence.
We cannot agree with the appellant as to his fifth assignment of error. There is no contention by appellant that any of the sentences he received are more than the maximum called for by our criminal code. He merely argues that the cumulative effect of the sentences constitutes cruel and unusual punishment in his case, considering his age, education, etc. We feel that the trial court could and did consider the number of times appellant has been sent to the Boy's Industrial School, the great number of criminal offenses he has committed, how many sentences have been suspended, and how many opportunities appellant has had to stay out of the penitentiary. The fact that the punishment authorized is severe does not make it cruel or unusual. Johnson v. State, 214 Ark. 902, 218 S.W.2d 687. It is within the power of the legislature to classify crimes and determine punishment for violation of such classifications. After such punishment is set, and until it is declared unconstitutional, no sentence under it can be regarded as cruel or unusual. Hadley v. State, 196 Ark. 307, 117 S.W.2d 352. We do not find the sentence in the present case to result from passion or prejudice, exceed the statutory limits, or to be cruel and unusual. Furthermore, we have on many occasions held that the suspension of a sentence rests in the sound discretion of the trial court and that the sufficiency of the evidence for revocation of such suspension also lies within the sound discretion of the trial court. See Smith v. State, 241 Ark. 958, 411 S.W.2d 510, and Kinard v. City of Conway, 241 Ark. 255, 407 S.W.2d 382. No abuse of that discretion has been shown in the case at bar.
We agree with the trial court that appellant's petition is without merit.