This is an appeal by Michael D. Cullens from an order of the Crittenden County Circuit Court denying his petition for post-conviction relief under our Criminal Procedure Rule No. 1.
On February 2, 1971, Cullens was charged on information filed by the prosecuting attorney in Crittenden County, Arkansas, with the crimes of burglary and grand larceny, and possession of stolen property. The state's attorney also filed petitions for the revocation of five previously suspended sentences. On September 20, 1971, the appellant entered pleas of guilty on four counts of possession of stolen property and to the charge of burglary and grand larceny. Through the process of plea bargaining, one of the five petitions for revocation of the suspended sentences was granted and the state withdrew its petitions to revoke in the remaining four cases. Appellant was sentenced to 10 years in the penitentiary on each of the possession charges and on the revocation of suspended sentence with the sentences to run concurrently. He was also sentenced to a term of 21 years on the burglary and grand larceny charges, but these sentences were suspended during good behavior.
No hearing was had on the motion for post-conviction relief and it appears that the trial court disposed of the appellant's motion under subsection (c) of our Criminal Procedure Rule No. 1, which reads as follows:
When the guilty pleas were entered and accepted, the trial court did a commendable job in protecting his record against subsequent attack as to advising the appellant of his rights and of the possible penalties involved in the event he should waive his rights to a jury trial. The trial court addressed the appellant with the following questions and received the following answers:
DEFENDANT CULLENS: No, sir.
THE COURT: And you are entering your pleas of guilty to these cases because you are in fact guilty, as I understand it?
Of course, in his "Motion to Vacate Sentence Under Criminal Procedure Rule No. 1," the appellant now alleges matters that he was not questioned on at the time his pleas of guilty were accepted. After setting out that his pleas of guilty were entirely involuntary and in strict violation of his constitutional rights under the Arkansas Constitution and the sixth, eighth and fourteenth amendments to the United States Constitution, the appellant now states as follows:
The trial court in this case was evidently very familiar with every step in the procedure when the appellant entered his pleas of guilty, and we may reasonably assume that the trial court was very familiar with the qualifications of the appellant's retained counsel in this case and was familiar enough with the overall situation at the time the pleas were accepted to feel that the appellant had obtained such advantage in his plea bargaining that the skill and effectiveness of his counsel would simply never be questioned; but the cold record as it appears before us refreshes no memories of the actual proceedings at the trial as perhaps it would do for the trial court.
The appellant contends in his motion that his total contact with his attorney prior to his pleas of guilty consisted of a mere ten minute interview, and that his attorney knew little, if anything, about his pending cases. If we could read between the lines from the overall record before us, we might easily conclude that the appellant's attorney knew a lot more about the appellant's case, as well as the inclination of Crittenden County trial juries, than the appellant gave him credit for. We, of course, are not permitted to read between the lines in the records before us and the record could have been much clearer if the trial court had also inquired of the appellant if he was satisfied with the services of his attorney. If the appellant had answered in the negative, the court could then and there ascertain wherein the difficulty lay.
The appellant now contends that the prosecuting attorney and defense counsel improperly "overbore" him by telling him that if he did not plead guilty to the charges the state had not waived, he would receive a more severe sentence and still be charged and convicted as a habitual criminal. Again the overall record would indicate that if such advice and information was conveyed to the appellant by his counsel and the prosecuting attorney, they were probably telling him the truth, but never the less he now says that because of such threats he was placed in such fear he was unable to adequately confer and consult with his retained counsel and that he was completely coerced into entering his pleas.
From the record before us, we are unable to say that it conclusively shows the appellant is not entitled to relief, so we conclude that the trial court should have granted the appellant a hearing on his motion to the end that we might have a record, in the event of an appeal, from which we could determine wherein the appellant was "overborne" if such was the
Reversed and remanded with instructions to grant a hearing with the proceedings to be reported.
Reversed and remanded.
FOGLEMAN, J., not participating.
BYRD, J., dissents.