Van Harris v. State

Robert H. Dudley, Justice. On April 26, 1978, the appellant and three codefendants, members of a religious cult, were charged with the first degree murder of a three-year-old girl. They testified that they killed the child because they believed her to be an anathema to the cult. On September 12, 1978, appellant’s trial-in-chief began. After two of the State’s witnesses had testified, the prosecutor and appellant’s attorney reached a plea bargain. Under it, the State would amend the information to include the firearm enhancement statute, Ark. Stat. Ann. § 41-1004 (Repl. 1977),- [presently Ark. Code Ann. § 5-4-505 (1987)] and the appellant would change his plea to guilty. In exchange for his plea, he would receive fifty years for the first degree murder charge and 15 years for the firearm enhancement charge. The appellant subsequently pleaded guilty. On September 10, 1981, the appellant filed this post-conviction proceeding alleging, among other things, failure of the trial court to comply with A.R.Cr.P. Rule 24.4 for the firearm enhancement statute. For some unexplained reason the petition was not heard until July 13, 1987, almost six years after it was filed, and then the trial court’s written opinion was not entered until February 3,1988. The trial court denied relief. We reverse and remand. Rule 24.4 requires that, before a guilty plea is accepted, the trial court address the accused personally and inform him of: (a) the nature of the charge and determine that he understands it, (b) the mandatory minimum sentence of the charge, if any, (c) the maximum sentence, (d) the effect prior convictions or additional charges could have on the sentence, and (e) that by pleading guilty, or nolo contendere, the accused waives the right to a jury trial and to be confronted with the witnesses against him, except where the death penalty is sought. We have held, and continue to hold, that compliance with Rule 24 is mandatory. Reed v. State, 276 Ark. 318, 635 S.W.2d 472 (1982); Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980). In Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977), we held that substantial compliance was sufficient. In that case, subsection (a) was complied with as the informations were read to the accused, the deputy prosecutor stated the details of the crimes, and, at the post-conviction hearing, the appellant stated he knew the nature of the charges. He was aware of subsections (b) and (c), the potential sentences. Subsection (d), prior convictions, was not applicable. He understood subsection (e), that he was waiving the right to a jury trial. Here, there was no such substantial compliance with regard to the firearm enhancement charge. The trial court did not comply with subsection (a) and apprise appellant of the nature of the firearm charge or what the State would have to prove to convict him of that charge. The trial court did not comply with subsection (b) and inform the appellant of the mandatory minimum sentence. Instead, the trial court only indicated that the maximum sentence was a mandatory sentence. With regard to subsection (e), the trial court did not advise the appellant that he had a right to defend separately on the firearm charge, or that he had a right to a jury trial or appeal from a guilty verdict on that charge. The decision of the circuit court on the firearm enhancement conviction is reversed, and that part of the case is remanded so that that conviction may be set aside and appropriate proceedings had in accordance with Rule 37.4. The judgment of conviction for first degree murder is not affected by this opinion. Reversed and remanded. Holt, C.J., Hickman, and Purtle, JJ., concur in part and dissent in part.