author: James H. Pilkinton, Judge.

text:
    Alton HODNETT v. Charles L. DANIELS, Director of Labor, and WILLAMETTE INDUSTRIES
    E 80-132
    609 S.W. 2d 172
    Court of Appeals of Arkansas
    Opinion delivered December 17, 1980

      Kaplan, Brewer & Bilheimer, by: Peter A. Miller, for appellant.

      Employment Security Div., by: Herrn Northcutt and Carolyn Parham, for appellees.
   James H. Pilkinton, Judge.

Appellant, Alton Hodnett, was employed by Willamette Industries until January 31, 1980, at which time he was terminated due to lack of work.

Appellant filed a claim for unemployment benefits on February 5, 1980. The Employment Security Division denied his claim for benefits on February 21, 1980, because he was not seeking other work.

A timely appeal was filed with the Appeals Tribunal on February 25, 1980. A hearing was held on March 6, 1980, in Magnolia, Arkansas. Appellant appeared on his own behalf with one witness. Employer did not appear.

The Appeals Tribunal upheld the Agency’s decision on March 12, 1980. The appeals referee found that appellant was not doing those things a reasonably prudent man would be expected to do to secure work within the meaning of Section 4(c) [Ark. Stat. Ann. § 81-1105(c) (Repl. 1976)] of the employment security law.

Appellant through his attorney appealed the decision of the Appeals Tribunal to the Arkansas Board of Review. The Board of Review affirmed and adopted the Appeals Tribunal decision on June 26, 1980.

A notice of appeal was timely filed with this court on July 11, 1980.

Ark. Stat. Ann. § 81-1107(d)(7) states, in part:

In any proceeding under this subsection the findings of the Board of Review as to facts, if supported by evidence in absence of fraud, shall be conclusive and the jurisdiction of said court shall be confined to questions of law.

The Arkansas Supreme Court has stated, “. . . In a proceeding of this kind the Board’s findings of fact are conclusive if supported by evidence; which of course means substantial evidence.” Terry Dairy Products Co., Inc. v. Cash, 224 Ark. 576, 275 S.W. 2d 12 (1955).

This standard for review was reiterated by the Arkansas Supreme Court in Harris v. Daniels, 263 Ark. 897, 567 S.W. 2d 954 (1978).

Section 4(c) of the employment security law states that an insured worker shall be eligible for benefits during any week only if:

(c) Such worker is unemployed, physically and mentally able to perform suitable work, and is available for such work. Mere registration and reporting at a local employment office shall not be conclusive evidence of ability to work, availability for work, willingness to accept work unless the individual is doing those things which a reasonably prudent individual would be expected to do to secure work.

The record shows that claimant-appellant’s wife was ill, and he was deeply concerned about being layed off from work. Mr. Hodnett’s supervisor, Mr. Hardaway, told him not to be concerned about the layoff since he could collect unemployment insurance. The following week the appellant spoke with the plant manager, Mr. Mark Robinson, and informed him that he wanted to continue working at least until he had paid some of the extensive hospital bills incurred as a result of his wife’s illness. Mr. Robinson told the appellant not to worry about the hospital bills since he could pay them out of his unemployment compensation and that the company “would not fight the unemployment claim.”

Shortly after appellant’s dismissal, his daughter, who was living in Texas with her children, was killed and appellant had to go to Texas for several weeks to stabilize the family situation. He then returned with his grandchildren to Magnolia, Arkansas. During and immediately after the family emergency, appellant was not able to seek employment. Appellant attempts to justify his failure to seek work by arguing that he was unable to seek employment because of a family emergency situation when his daughter was killed in Texas after he had left his job and this prevented him from looking for a job.

Appellant asserts that this personal emergency exception to Section 4(c) is set out in the case of Wade v. Thornbrough, 231 Ark. 454, 330 S.W. 2d 100 (1959). The Arkansas Supreme Court in the Wade decision found that a woman who quit her job as the result of a personal emergency was not disqualified for unemployment benefits based on Section 5(a) [Ark. Stat. Ann. § 81-1106(a)] of the employment security law. Section 5(a) of the Act does allow unemployment payments upon voluntary quitting if, after reasonable efforts to preserve job rights, a claimant leaves work due to a personal emergency of such nature and conpelling urgency that it would be contrary to good conscience to impose a disqualification. The personal emergency in the Wade case was five children with measles.

The Wade v. Thornbrough decision does not apply to appellant’s situation. The Wade decision dealt with Section 5(a) of the law pertaining to the voluntary quitting of a job due to personal emergency. Appellant here was disqualified under Section 4(c) of the law for not actively seeking employment after separation from this previous employment. The Arkansas Legislature clearly expressed its intent to allow certain exceptions to eligibliity disqualification under Section 5(a) of the Statute. No such intent is shown under Section 4(c). Moreover there is no case law setting out an “emergency” exception to the search for work requirement of Section 4(c). This absence of exception to Section 4(c) is perhaps because the 4(c disqualification is strictly a week-to-week disqualification and can be overcome when claimant shows that he is available and is looking for work. This is apparently what happened in subject case since appellant did qualify for unemployment benefits on April 7, 1980.

Appellant also cites numerous cases which purport to hold that rejection by a claimant of prospective employment (or the failure to seek employment) does not necessarily disqualify him from receiving unemployment benefits if such rejection is for good cause. Each case cited dealt with the issue of a claimant rejecting specific employment and whether the rejection was for good cause. In the case at bar appellant did not look for employment during the period in question because of the family emergency. We are not aware of any cases which allow an exception to the availability or search for work requirement on the basis of “good cause” for personal reasons under Section 4(c).

We can agree with appellant’s argument that a reasonably prudent person would not be expected to actively seek work under the circumstances this claimant faced from February 5, 1980, until he got his family together and settled. However, the crucial point is that appellant was not available for work during the period in question. He was making trips to Texas, getting his grandchildren settled, and doing other things which were necessary, but personal.

As there is substantial evidence to support the Board of Review finding that appellant was not available for work, within the meaning of Section 4(c), during the period in question, we must affirm.


source: Caselaw Access Project

license: Public Domain

text:
    Brenda CRENSHAW v. STATE of Arkansas
    CA CR 80-57
    609 S.W 2d 120
    Court of Appeals of Arkansas
    Opinion delivered December 17, 1980

      Guy H. Jones, Phil Stratton, Guy Jones, Jr. & Casey Jones, by: Phil Stratton, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   James H. Pilkinton, Judge.

This is an appeal from a jury verdict, and judgment entered thereon, convicting the appellant of battery in the second degree in violation of Ark. Stat. Ann. § 41-1602 (Repl. 1977). At the trial appellant claimed self-defense and justification. Two points for reversal are argued.

I

At the close of the testimony, appellant requested that the court give AMCI 4105, as modified, by including subsection (a). The court refused to modify AMCI 4105 and gave it without modification. Appellant argues here that the trial court erred in not including subsection (a) which reads as follows:

(a) . . . (However, he is not required to retreat if he is in his dwelling and was not the original aggressor) . . .

We find no merit in this argument. In the first place, the record shows that appellant failed to object to the court’s refusal to include subsection (a) in AMCI 4105, which was given. We do not have a “plain error” rule in Arkansas. See Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980) (Arkansas Supreme Court opinion delivered October 20, 1980). It is well settled that an argument for reversal will not be considered on the appellate level in the absence of an appropriate objection in the trial court. Also we note that the appellant failed to abstract any of the jury instructions. The state has supplied a supplemental abstract of the instructions given; however, we do not have before us the exact wording of the instruction offered by the appellant which the court refused to give. See Ellis v. State, 267 Ark. 5, 590 S.W. 2d 309 (Ark. App. 1979) and Vial v. State, 267 Ark. 1078, 593 S.W. 2d 491 (Ark. App. 1980). We would also note that the trial judge stated he was refusing the offered instruction because the undisputed evidence showed that appellant was not in her dwelling, and the fight did not occur in her house as defined by statute.

II

Appellant’s point II is based on the trial court’s refusal to give the jury a verdict form on the offense of battery in the third degree. As in point I, appellant has failed to abstract the verdict form which was refused, and to abstract any discussion between the court and counsel concerning the form of the verdicts to be submitted.' Appellant did, however, include some of the discussion in her brief. The record is also silent concerning any objections made on the trial level to the court’s action in refusing to submit to the jury a verdict form on third degree battery. The Arkansas Supreme Court has covered the failure to object to verdict forms in two recent cases. See Goodwin v. State, 263 Ark. 856, 568 S.W. 2d 3 (1978) and Coulter v. State, 269 Ark. 537, 597 S.W. 2d 814 (1980).

In the Coulter case the court said:

Appellant, Henry C. Coulter, was sentenced to 32 years imprisonment as a habitual criminal, after a jury found him guilty of burglary and theft of property. Challenging only the theft of property conviction on appeal, appellant contends that the trial court erred in failing to submit the proper verdict forms to the jury. We affirm without reaching the merits of his argument since appellant failed to raise the issue in the trial court.
We have consistently held that objections as to verdict forms and jury instructions must be asserted in the trial court before they will be considered on appeal. See, e.g. Spears v. State, 264 Ark. 83, 568 S.W. 2d 492 (1978); Rowland v. State, 263 Ark. 77, 562 S.W. 2d 590 (1978) Goodwin v. State, 263 Ark. 856, 568 S.W. 2d 3 (1978); and Fauna v. State, 265 Ark. 934, 582 S.W. 2d 18 (1979). We disregard a failure to object in the trial court only when the error is so great that it could not have been cured by the trial judge and only then to prevent a clear miscarriage of justice. Smith v. State, 268 Ark. 282, 595 S.W. 2d 671 (March 24, 1980). We perceive nothing that we have said in the past to have relaxed the application of this principle.

The trial court is not obligated to charge the jury with respect to an included offense unless there is a rational basis for a possible verdict acquitting the defendant of the offense charged and for convicting of the included offense. Ark. Stat. Ann. § 41-105(3) (Repl. 1977). In the case before us the defendant-appellant was either guilty of the greater charge or nothing at all. Parker v. State, 258 Ark. 880, 529 S.W. 2d 860 (1975).

This record shows that when the court first instructed the jury the lesser charge of battery in the third degree was included; however, before the case was submitted to the jury, the trial court withdrew the instruction on third degree battery, and submitted to the jury only two verdict forms, one to be used if the jury found the defendant guilty of battery in the second degree, and another to be used in the event the jury found the defendant not guilty of battery in the second degree, or had a reasonable doubt of her guilt on that charge. As stated above, if appellant made any objection to the court’s action with reference to the instructions, or the verdict forms, it is not abstracted. No adequate reason for failing to object is disclosed by the record.

Affirmed.


author: Marian F. Penix, Judge.

text:
    Marie WHITE, Individually and By Her Mother and Next Friend, Frances White PEOPLES v. E.W. GARRISON and Mary GARRISON, Husband and Wife
    CA 80-313
    609 S.W. 2d 111
    Court of Appeals of Arkansas
    Opinion delivered December 17, 1980.

      Gibson & Gibson by: R. Bynum Gibson, Jr., for appellants.

      Drew & Mazzanti, by: Jerry E. mazzanti, for appellees.
   Marian F. Penix, Judge.

In March, 1978, the appellees E.W. and Mary Garrison, purchased a trailer park consisting of 4.525 acres from Marie White’s father’s estate for $17,-200.00. They improved the property in the amount of $5,-000.00. Marie White, appellant, is mentally retarded. As a result of a wrongful death action she inherited $21,701.96 from her father’s estate. During the pendency of the tort action and the probate of her father’s estate, a guardian was appointed for her. The guardianship was dissolved shortly before she received her inheritance settlement check on July 19, 1978. The $21,701.96 check was deposited into an escrow account of her attorney, Jim Haddock. On July 19, 1978 $20,-000.00 was paid to the Garrisons for the trailer park. The balance of $1,701.96 was retained by Attorney Haddock as a fee. In addition to the $20,000 paid the Garrisons, Marie Whie also executed a $6,500.00 installment note for the balance of the total purchase price of $26,500.00. In August 1978 Marie White executed a General Power of Attorney to her mother Frances White Peoples. On October 16, 1978 Marie White reconveyed to the Garrisons the entire trailer park, less a small lot (100" x 60") for $3,084.00 (in the form of a used trailer). The Garrisons retained an exclusive option to repurchase the small lot for $1,500. The Garrisons exercised this option for $700.00. In November 1978 Marie White, through her mother and next friend, Frances White Peoples brought an action to set aside and cancel the October 16 conveyance from Marie White to the Garrisons. The Court cancelled and set aside the conveyance. However, the Court granted judgment against Marie White for $3,784.00, together with any accumulated payments until the date of the decree on the $6,500.00 note. Further, the Court impressed an equitable lien upon the property in the amount of $10,-284.00 plus accumulated interest. The $10,284.00 represents $3,784.00 paid by the Garrisons for reacquiring the property together with the $6,500.00 note executed by Marie White on July 19, 1980. Marie White appeals from the portion of the Decree awarding judgment against Marie White and impressing an equitable lien upon the property.

Marie White contends the judgment against her was in error because no guardian was appointed to appear and defend on her behalf. She also alleges error because the Garrisons did not file a counter-claim and also because the Garrisons are guilty of reprehensible conduct. Marie White contends she had not had her “day in Court” with respect to the promissory note executed by her'July 19. In its findings of fact the Court stated:

. . . this Court’s inherent equitable power to right what is a patent wrong should be exercised in this case based upon the following:
1. The video tape deposition of Marie together with the testimony of Dr. Gilbert reveals that she is mentally retarded to a significant degree and in no way understands the nature of the various trailer park transactions — or this lawsuit — for that matter; and,
2. Marie in her own trusted Garrison based upon her association through the years, (testimony of Garrison himself); and,
3. The Garrisons, both of them, after receiving $26,500 less than three months thereafter returned to Marie only $3,084.00 plus satisfaction of the $6,500.00 note. The value of the trailer lot is — for purposes of the relief herein granted — fixed at $700.00. A total of $10,284.00. Thus, a profit to Garrisons of $16,216.00. Garrison, though he knew Marie was “slow”, said he felt he should make a profit.
4. On or about October 16, 1978, Marie and her mother were without a place to live. Garrison took unmistakable advantage of their predicament.
5. The Court has totally disregarded the disclaimer of Marie because Marie White was — at all times pertinent hereto — mentally deficient to the extent that she could not conduct her own affairs and was unaware of the nature, extent or value of her property and by what means she was divested of it. In a nutshell Marie, a mentally retarded person, had $21,750.00 in July of 1978 and in October, 1978, had nothing except the $100.00 she subsequently received. Garrison, on the other hand received a profit of $16,216.00 which clearly was Marie’s money.

The Court went on to state its perception of the law as expressed in Storthz v. Williams, 51 Ark. 460 (1908):

Where the inadequacy (of price) does not stand alone, but is accompanied by other inequitable incidents, the relief is more readily granted . . . courts have established clearly marked limitations upon their remedial functions . . . The fact that a conveyance or other transaction was made without professional advice . . . was improvident, even coupled with an inadequacy of price, is not itself a sufficient ground for relief, provided the parties were both able to judge and act independently, and did act upon equal terms, and fully understood the nature of the transaction, and there was no undue influence or circumstance of oppression. When the accompanying incidents are inequitable, and show bad faith, such as . . . undue advantage . . . ignorance, weakness of mind . . . incapacity, pecuniary necessities, and the like . . . combined with inadequacy of price, may . . . induce a court to grant relief.

The Court further stated there is a heavy burden of proof on the one benefitting from the transaction to show good faith. The Court found the burden has not been met by Garrison in regard to the October 16 transaction. The Court ordered the deed cancelled.

We believe the Court correctly ordered the cancellation of the October deed. We cannot, however, agree with those parts of the decree which render a personal judgment against Marie in the amount of $3,784.00 and impose an equitable lien on the trailer park in the amount of $6,500.00. The Court made a specific finding of fact as to Marie’s incompetency and her inability to comprehend any of the trailer park transactions. Ark. Stat. Ann. § 27-830 states that no judgment may be rendered against an incompetent unless a guardian has been appointed.

The defense of an action against a person judicially found to be of unsound mind must be by his committee [guardian] or a guardian appointed by the court to defend for him, where no committee [guardian] appears, or where the court directs a defense by a guardian. No judgment can be rendered against him until after a defense by his committee[guardian\ or by a guardian appointed for that purpose. . . . (Emphasis supplied).

Because no guardian was appointed, we find the imposition of the judgment and lien against Marie to be erroneous as a matter of law and therefore reverse. The cancellation of the deeds is affirmed but all other parts of the decree are reversed.

Affirmed in part; reversed in part.


text:
    James Lee DAVIS v. STATE of Arkansas
    CA CR 80-58
    609 S.W. 2d 109
    Court of Appeals of Arkansas
    Opinion delivered December 17, 1980

      Elrod & Lee, for appellant.

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   Marian F. Penix, Judge.

Appellant, James Lee Davis, was driving from his place of employment, Chickasha, Oklahoma, to his home in Siloam Springs, Arkansas on September 29, 1978. An officer of the Delaware County, Oklahoma police force stopped Davis in Benton County, Arkansas. He gave Davis a choice of returning to Jay, Oklahoma or of being arrested in Arkansas. The Oklahoma officer radioed the Siloam Springs Police Department and Officer Dennis Johnson was sent to investigate. Officer Johnson determined Davis had been drinking. He arrested Davis and they proceeded to the Siloam Springs Memorial Hospital where a blood test for alcohol was administered. Davis was charged with driving while intoxicated and possessing untaxed liquor. Davis was convicted on October 3, 1978, in the Siloam Springs Municipal Court. He appealed to the Benton County Circuit Court. After a trial de novo he was convicted on February 6, 1980. From this conviction, he appeals.

Davis contends the Court erred in refusing to grant his motion to dismiss which was made on the. grounds the City offered no proof or probable cause for Davis having been stopped by the Oklahoma officer. Officer Johnson testified when he arrived at the scene Davis was standing outside his car. He testified Davis admitted he had been drinking. The record reflects there was another passenger in Davis’ car. The State contends the probable or reasonable cause arose from Officer Johnson’s own observations of Davis and his smelling the alcohol on and about Davis’ person as they stood beside his car. The State also contends Johnson’s testimony as to what the Oklahoma officer told him is not hearsay because it was offered not to prove the truth of the matter asserted, but as an introduction to the main matter by way of an inducement of the witness to act — i.e., to explain why Officer Johnson started an investigation or went to the highway where Davis was stopped.

Davis contends the burden of proof lies with the State and that the State has not met its burden of proving probable cause for the arrest and charge of driving a vehicle while intoxicated.

Rule 4.1 of the Arkansas Rules of Criminal Procedure provides:

Authority to Arrest Without Warrant.
(a) A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed .-. .
(ii) A traffic offense involving: . . .
(C) driving a vehicle while under the influence of any intoxicating liquor or drug; . . . (Emphasis Ours).

The Appellant testified he was driving his car from work at Chickasha, Oklahoma to Siloam Springs, Arkansas. He further testified the Oklahoma Officer who stopped him told him he was holding up traffic driving forty miles an hour in a forty-five mile zone. He testified he was employed as a construction worker on highlines, and because of the highly dangerous work, he always drank a beer after work to help relax.

We find sufficient reasonable cause for placing Davis under arrest. The arresting officer had reasonable cause to go to the scene of the arrest because an Oklahoma officer had radioed him to come to the scene. Upon arriving at the scene he detected Davis was under the influence of alcohol. He detected this from his own observation and from a direct sensory impression. He observed a bottle of alcoholic beverage in Davis’ automobile under plain sight. Davis never once contended he had not been the one driving his car when he was pulled over by the Oklahoma officer. The statements of the Oklahoma officer are exceptions to the hearsay rule. They were offered into evidence to explain why Officer Dennis Johnson went to the scene in the first place. Poole & Poole v. State, 262 Ark. 4, 552 S.W. 2d 647 (1977); Powell v. State, 231 Ark. 737, 332 S.W. 2d 483 (1960); Trotter v. State, 215 Ark. 121, 219 S.W. 2d 636 (1949).

Affirmed.


author: W. Harold Flowers, Judge.

text:
    Mr. and Mrs. Oscar TALLEY v. Silas BLACKMON
    CA 80-350
    609 S.W. 2d 113
    Court of Appeals of Arkansas
    Opinion delivered December 17, 1980

      R. L. Walloch and Raymond Weber, for appelalnts.

      J. Roy Howard and Gene Worsham, for appellee.
   W. Harold Flowers, Judge.

Appellants appeal from an order of the chancery court granting appellee motion for a summary judgment and dismissing appellants’ complaint on the ground that a prior action filed by appellants in the circuit court seeking a money judgment estopped them from instituting this action in chancery court seeking judgment and an equitable mortgage.

Appellants, an aged couple married for fifty-two years, withdrew from their savings accounts the sum of $22,000 at the request of the appellee and his wife, the son-in-law and daughter of appellants, and paid off the mortgage on their home. Pursuant to an oral agreement between the parties, that the advancement would be repaid in monthly payments of $250, appellee and his wife made five payments in the sum of $250 each, the last being made by the appellee on April 2, 1976, a few days subsequent to the death of his wife on March 26, 1976. Thereafter appellee refused to make further payments on the loan.

On May 2, 1977, appellants filed suit against appellee in the circuit court seeking recovery of the unpaid balance of the loan. An answer was filed by appellee generally denying the allegations and specifically pleading the Statute of Frauds. The suit proceeded to trial, ánd upon the close of appellants’ case appellee moved for a directed verdict on the ground the evidence shows the oral agreement was not to be performed in one year and was not enforceable because of the Statute of Frauds. Appellants thereupon elected to take a non-suit and the cause was dismissed without prejudice on May 16, 1978.

On June 20, 1978, appellants filed an action in the chancery court for the debt and declaration of an equitable mortgage. Whereupon, appellee filed an answer invoking the defenses of election of remedies, estoppel, and Statute of Frauds, and asked dismissal of the complaint or in the alternative summary judgment. The trial court held appellants elected their remedy in the circuit court action and were es-topped from re-instituting this action in the chancery court.

On appeal appellants contend the chancery court erred in ruling appellants were barred from pursuing this action in chancery and we agree.

If a plaintiff files an action to enforce one remedy and dismisses it without prejudice, he is thereafter barred from pursuing an action seeking enforcement of an inconsistent remedy. Miller v. Empire Rice Mills, Inc., 228 Ark. 1161, 312 S.W. 2d 925 (1958).

The chancery suit was not in conflict with the circuit court suit, but only sought an equitable lien in addition to judgment for the debt. The pleadings and circumstances do not bring the case within the rule which bars a second suit which attempts to obtain relief in conflict with the first action.

It is clear from a review of the evidence appellants entered into an oral agreement whereby appellants loaned appellee and wife $22,000 and that appellee agreed to repay the loan at the rate of $250 per month. The proceeds of the loan were used to pay off an existing mortgage on appellee’s home. Appellee and his wife made five monthly payments on the loan, and appellee then declined to make further payments. While the trial court dismissed the case on the erroneous theory appellants were barred because of a prior election of remedy in the circuit court action, it was stipulated the evidence was fully developed. This being an appeal from the chancery court, we review the case de novo and dispose of all issues. Royal Manor Apartments v. Parnell, 258 Ark. 166, 523 S.W. 2d 909 (1975).

Appellee pled as a defense the Statute of Frauds, but we hold the full performance on the part of appellants by extending the loan and part performance on the part of appelee in making payments on the loan operated to take the oral agreement out of the Statute of Frauds, which would apply except for the circumstances of performance, since the agreement was not to be performed by appellee within one year. This holding is supported by numerous cases from various jurisdictions cited in 6 ALR 2d 1122, and by Ferguson v. Triplett Co., 199 Ark. 546, 134 S.W. 2d 538 (1939). Two of the well reasoned cases from other jurisdictions supporting this rule are McDonald v. Crosby, 61 N.E. 505 (Ill. 1901) and Kneeland v. Shroyer, 328 P. 2d 753 (Ore. 1958). This rule should have been followed in the circuit court action.

There is no evidence of any agreement that appellee would provide a mortgage to secure the debt, and thus we find no basis for an equitable mortgage.

No objection was made to the jurisdiction of the chancery court, and absent an objection the chancery court should have rejected judgment on the undisputed evidence for the accrued unpaid monthly payments.

The judgment is reversed and the case is remanded for entry of judgment in favor of appellants for all accrued and unpaid monthly payments.

Reversed and remanded.


author: David Newbern, Judge.

text:
    Clifford WOODARD v. ITT HIGBIE MANUFACTURING CO., Employer; INSURANCE COMPANY OF NORTH AMERICA, Insurance Carrier; and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier
    CA 80-212
    609 S.W. 2d 115
    Court of Appeals of Arkansas
    Opinion delivered December 17, 1980

      Wright, Lindsey & Jennings and Charles D. Pearrow, for appellant.

      Friday, Eldredge & Clark, for appellees.
   David Newbern, Judge.

We are presented here with a question of application of the statute of limitations in workers’ compensation cases. Ark. Stat. Ann. § 81-1318 (Repl. 1976 and Supp. 1979)- The commission held the appellant’s claim was barred by the statute. We disagree.

The appellant initially injured his back while working for ITT Higbie Manufacturing Co. in 1974. Compensation benefits were paid by ITT Higbie’s carrier, Liberty Mutual Insurance Co. The appellant reinjured his back in 1976, and Liberty Mutual again made payments, the last one being made April 20, 1977. Permanent disability was not claimed by the appellant. Thereafter, ITT Higbie changed carriers. The appellant reinjured his back in June, 1978, and ITT Higbie’s new carrier, Insurance Company of North America (INA), paid workers’ compensation benefits to the appellant. In May, 1979, the appellant filed the claim, which is now before us, for a fourth recurrence of his back injury, seeking permanent disability benefits.

The medical evidence before the commission with respect to the 1976 and 1977 incidents referred to the condition of the appellant as “acute lumbosacral strain,” and “chronic lumbosacral strain” respectively. A medical report of July 20, 1978, stated “he does have a herniated nucleus pulposus at L 4-5 on the left.” Another medical report, dated July 27, 1978, said examination revealed “an L-4/5 disc and nerve root irritation.” This report concluded “he can return to work as symptoms might warrant.” Medical reports subsequent to the 1979 incident showed the appellant was hospitalized, and concluded he had a permanent partial physical impairment resulting from the condition of his back. The appellant filed his claim on May 30, 1979, seeking permanent partial disability benefits in the amount of 20%, including 10% anatomical impairment and 10% wage loss. The commission found that a preponderance of the evidence supported the administrative law judge’s determination that all of the incidents subsequent to the one which occurred August 7, 1974, were “recurrences of the initial injury.” The commission affirmed the administrative law judge’s determination that the statute of limitations barred the claim because no claim had been paid by Liberty Mutual for this injury for more than one year, and more than two years had elapsed since the injury of 1974. The payments made by INA seem to have been regarded as gratutious and, therefore, as not having been payments from which the statute of limitations would run. In summary, the commission has held that, with respect to any claims arising out of the 1974 injury, Liberty Mutual is the carrier which has coverage, and that as to Liberty Mutual, those claims are barred by the statute.

The purpose of the statute of limitations in workers’ compensation cases is to permit prompt investigation and treatment of injuries. Larson, Workmen’s Compensation Law, § 78.00 (1978). The statute runs in favor of the employer rather than the carrier. See, Brownings Restaurant et al v. Kuykendall et al, 263 Ark. 374, 565 S.W. 2d 33 (1978), where the supreme court said:

Under Ark. Stat. Ann. § 81-1318 (Repl. 1976), the limitations therein stated run in favor of the employer, and a workers’ compensation carrier cannot claim the benefit thereof unless the limitation has also run in favor of the employer. It follows that the Commission properly held that the liability of U.S.F. & G.was not barred by the statute of limitations. [263 Ark. at 377]

Although the parties properly do not regard it as an issue, we may prevent confusion by pointing out that the payments by INA did not have the effect of “reviving” any claim as to which the statute might have run with respect to the employer. See, Larson, Workmen’s Compensation Law, § 78.43(b) (1976), at pp. 15-131 and 15-132:

Once the claim has been barred by the passage of time, it will not be revived and a new period will not be set in motion by the furnishing of medical service years after the injury. The objective of the statute being to protect the claimant who reasonably refrains from making claim because of the receipt of benefits voluntarily supplied, no claimant can allege that his failure to make timely application was excused by something that happened after the claim was already barred. Moreover, since the employer was under no obligation to furnish such benefits once the right to them was barred, it cannot be said that he provided them as voluntary compensation payments. [Footnotes omitted.]

Although this text mentions only medical payments made after the limitations period has run, the rule should apply to all compensation benefits.

The appellant contends the statute did not begin to run until he “should reasonably have discovered his condition.” The essence of this agreement is that the appellant did not know he suffered from a herniated nucleus pulposus until July 20, 1978, and did not know that his disability was permanent until it was evaluated as such in 1979, and he filed his claim within two years of those events.

Liberty Mutual contends that the statute began to run with the initial occurrence in 1974; that the appellant knew what his condition was then, and he has waited more than two years from that event, and more than one year since their last payment, to file his claim.

The appellant cites Donaldson v. Calbert-McBride Printing Co., 217 Ark. 625, 232 S.W. 2d 561 (1950), and T.J. Moss Tie & Timber Co. v. Martin, 220 Ark. 265, 247 S.W. 2d 198 (1952). In the Donaldson case the claimant had an accident but submitted no claim and accepted no benefits until after one year had passed from the date of “the injury.” The supreme court held he was not barred because the term “injury” means “compensable injury,” and the “injury” did not become “compensable” until the claimant first learned the extent of his injury (a fractured coccyx) and was off work for a period that would entitle him to benefits for a compensable injury. Liberty Mutual attempts to distinguish the case on the ground that here the appellant had a compensable injury from the start, and he received workers’ compensation benefits from 1974 on. While the dintinction is factually correct, we question whether it should be influential with respect to the principal we seek to apply and which is articulated there, i.e., that the statute does not begin to run until the employee knows or should reasonably be expected to be aware of the extent or nature of his injury.

In the T. J. Moss case the claimant severely fractured his arm. After treatment, he was told by a physician the arm was healed and he could use it in his work. While doing so, more than one year after the last compensation payment had been made, the arm “completely gave way.” The supreme court refused to construe the statute in a way that would “require a claimant to file a claim for disability which did not in fact exist and one that was not reasonably apparent or discoverable to the claimant [220 Ark. at 269].”

Liberty Mutual attempts to distinguish the T. J. Moss case by saying that here the appellant knew the nature of his injury from the outset. The medical evidence is to the contrary. It was not until 1978 he was diagnosed as having a herniated nucleus pulposus as opposed to the earlier “strain” diagnoses. Nor had any physician even mentioned permanent disability until 1979.

In Sanderson and Porter v. Crow, 214 Ark. 416, 216 S.W. 2d 796 (1949), upon which Liberty Mutual relies, the court reversed a decision granting benefits because the claim was barred by the state. Liberty Mutual makes much of the language of the court describing the injury there not as “latent” but as “recurrent” as was the injury before us. We are not persuaded by the case because the gravamen of that decision was not a distinction between “latent” and “recurrent.” It was, rather, the finding by the court that:

At all events, even if the injury were latent theretofore, certainly when the appellee was X-rayed and discharged from the Navy on December 5, 1944, any latent injury became patent so as to commence the running of the statute of limitations. [214 Ark. at 420]

We hold the appellant’s claim was not barred by the statute of limitations because there is no substantial evidence showing that the appellant knew or should have known the nature and extent of his injury more than two years prior to filing his claim.

Reversed and remanded.

Judge Penix did not participate.

       The statute in effect at the time prescribed a one-year limitation, measuring the time from the date of the injury.


author:
Frank Holt, Justice.
      Darrell Hickman, Justice, John I. Purtle,

text:
    Ellis W. McINNIS et ux v. COOPER COMMUNITIES, INC.
    80-254
    611 S.W. 2d 767
    Supreme Court of Arkansas
    Substituted Opinion on Rehearing delivered February 23, 1981

      Cockrill & McGhee, for appellants.

      Richard H. Smith and Catlett cfc Henderson, for appellees.
   Frank Holt, Justice.

Appellants brought suit to have a note and mortgage declared usurious and void, in violation of Art. 19, § 13 of the Constitution of Arkansas (1874), which restricts the charge of interest to 10% annually. Appellee responded that the loan, bearing 12% interest, was valid, because it came within the preemptive provisions of the Depository Institutions Deregulation & Monetary Control Act of 1980, 94 Stat. 132. Both parties filed a motion for summary judgment, which the chancellor granted in favor of appellee, holding that the note and mortgage were valid under the provisions of that congressional act. In reversing we held that § 501 (a) (1) of the act was an invalid legislative exercise of congressional power pursuant to the commerce clause. Succinctly, the issue on rehearing is the validity of this congressional act which suspends the state’s usury laws and, also, reserves to a state the right to veto by overriding the act. Further, if valid, is appellee’s loan to appellant usurious? We hold the act valid and appellee’s loan to appellants is not usurious.

Appellants purchased a residential lot in Hot Springs Village, Garland County, from appelee on July 31, 1980. They paid $650 down on the $6,500 purchase price, executing a note for the $5,850 balance with interest of 12% per annum, payable in 120 monthly installments of $84.94, beginning September 16, 1980. To secure the payment of this note, appellants executed a first mortgage to appellee on this lot. The parties stipulated that all lots sold by appellee at Hot Springs Village and Bella Vista Village in Arkansas are restricted to residential use by a recorded Declaration of Covenants and Restrictions. Furthermore, appellee, in its motion for summary judgment, included an uncontroverted affidavit showing it qualifies as a creditor as defined by 15 U.S.C. § 1602 (f) and stating it regularly, extends credit in connection with its sales of residential real property, secured by a mortgage on the propery; the property is real estate improved or to be improved by a dwelling structure or structures; appellee from April 1979 to August 31, 1980, made residential real property loans aggregating $35,778,000, and based upon its history, will annually make residential real estate loans aggreagating more than one million dollars.

Under § 501 (a) (1), the 10% urusy limit in our state would not apply to any loan, mortgage, credit sale, or advance which is secured by a first lien on residential real property, among other things, that is made after March 31, 1980. That section further sets out the requirement that such loan or mortgage must meet the description in § 527 (b) of the National Housing Act (12 U.S.C. 1735f-5 (b) [1976]) of a “federally related mortgage loan”. That section defines such a loan as one which is secured by residential real property designed principally for the occupancy of one to four families (this occupancy requirement being deleted for purposes of this legislation, see § 501[a] [1] [C] [i]), and meets certain other criteria, as pertinent here being made by a “creditor”, as defined in § 1602 (f) of Title 15 (15 U.S.C. § 1602 (f) [1976]), and who makes or invests in residential real estate loans aggregating more than one million dollars per year. Section 1602 (f) defines “creditor” as one who regularly extends, or arranges for the extension of, credit “which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, whether in connection with loans, sales of property or services, or otherwise.” This applies “to any such creditor, irrespective of his or its status as a natural person or any type of organization.” As indicated, we are of the view appellee has sufficiently met the requirements of the act.

We now consider whether this congresional act preempts our usury Jaws as to those areas covered by the act. Congress has power to do this by virtue of the Supremacy Clause, Art. 6, Cl. 2, Constitution of the United States. Congress has broad powers to legislate under the Commerce Clause of our Federal Constitution, Art. 1, § 8, Cl. 3, this power to legislate falling into, inter alia, the category concerning the regulation of activities affecting commerce. Perez v. United States, 402 U.S. 146 (1971). The U.S. Supreme Court has often noted the broad scope that Congress has to regulate economic affairs which have an impact on several states. In American Power Co. v. S.E.C., 239 U.S. 90 (1946), the court stated:

... we reaffirm once more the constitutional authority resident in Congress by virtue of the commerce clause to undertake to solve national problems directly and realistically, giving due recognition to the scope of state power. That follows from the fact that the federal commerce power is as broad as the economic needs of the nation.

Certainly, it cannot be disputed that congressional regulation of ;the availability and flow of money between the various states comes within the scope of the Commerce Clause.

The power of Congress to thus regulate under the Commerce Clause extends even to wholly intrastate activities which, standing alone or combined with like conduct of others similarly situated, might be a restraint of commerce or which might interfere with or injure interstate commerce. Fry v. United States, 421 U.S. 542 (1975). See also NLRB v. Fainblatt, 306 U.S. 601 (1939) (strike as affecting the movement of manufactured goods in interstate commerce.) This power includes intrastate activities which so affect interstate commerce as to make regulation an appropriate means to the attainment of a legitimate end, the regulation of interstate commerce. Katzenbach v. McClung, 379 U.S. 294 (1964). In Katzenbach the court noted the volume of goods purchased out-of-state by the family restaurant was insignificant in comparison with the total foodstuffs moving in commerce, but its contribution combined with that of many others similarly situated was far from trivial. See also United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942), (regulation of price of intrastate milk, as it was sold in competition with interstate milk and thus affected the price of the latter); and Wickard v. Filburn, 317 U.S. 111 (1943), (regulation of wheat grown for home consumption as the need would otherwise be satisfied on the open market; thus, it competes with wheat in commerce). Recently, in Neikirk v. State, 260 Ark. 526, 542 S.W. 2d 282 (1976), we held that a 55 m.p.h. speed regulation, established by Congress, subject to rejection by the states, was not violative of the Commerce Clause, nor the guarantee of due process, or equal protection.

If the class of activities is within the power of Congress to regulate under the Commerce Clause, the courts cannot “excise, as trivial, individual instances of this class.” Maryland v. Wirtz, 392 U.S. 183 (1968); Perez v. United States, supra; see also Katzenbach v. McClung, supra, that it is enough if the class of activities affects commerce, a case-by-case .determination not being required. Thus, proof that this particular loan had a significant impact on interstate commerce is not necessary. The purpose of the Commerce Clause is to ensure a national economy free from unjustifiable local entanglements. National Bellas Hess, Inc. v. Department of Revenue of the State of Illinois, 386 U.S. 753 (1967). A court should not substitute its judgment for that of Congress that the particular class of intrastate activities affects interstate commerce unless the relation and its effect are clearly nonexistent. See Stafford v. Wallace, 258 U.S. 495 (1922). There is a strong presumption of validity of an act of Congress. United States v. National Dairy Products Corp., et al, 372 U.S. 29 (1963). We have recognized that the character of regulations of commerce is left to the discretion of Congress, and it is “the duty of the courts to resolve all doubts in favor of the legislative action.” St. Louis & San Francisco R.R. v. Heyser, 95 Ark. 412, 130 S.W. 541 (1910). This discretion is limited only by the fact that the means chosen to regulate must be reasonably adapted to the regulation of interstate commerce. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964).

We now note that the testimony during the congressional hearings was that state usury laws have a significant impact on the econony by diverting credit out-of-state, stagnating the housing industry and resulting in the inability of the farmers and small businessmen to borrow, all of which distorts and adversely affects local and national economy. See 126 Cong. Rec. H. 2273-2275 (daily ed. March 27, 1980); 126 Cong. Rec. S. 3170 - 3176 (daily ed. March 27, 1980). The legislative history of an act, as reflected by congressional hearings, is most significant.

In Stephens Security Bank v. Eppivic Corp, 411 F. Supp. 61 (W.D. Ark. 1976) (affirmed 553 F. 2d 102 [8th Cir. 1977]), the court had before it the question of whether the “Brock Bill,” Title II of P.L. 93-501, October 29, 1974 (predecessor to the Monetary Control Act here), preempted the Arkansas 10% constitutional usury limitation as to loan of $25,000 or more made by national banks, FDIC-insured state banks and FSLIC-insured savings and loan associations for business and agricultural purposes. The court found the bill preemptive. The court’s observations there are applicable here:

The legislative history reflects findings that the financial community in the affected states has suffered because of the high price it must pay for money as opposed to the limitation on the interest it may earn . . .
Testimony indicated that the usury ceilings were impacting heavily on the construction, small business and agricultural areas of the economies of the states, with a likelihood of severe shortgage or unavailability of credit to these classes in the economy. The report states, ‘. . . the evidence before the committee indicates that . . .[u]nless remedial action is taken in the very near future, these states could suffer from unemployment and business failures.
These are not local problems. It was found that there were substantial effects on interstate commerce by reason of outflow from the states of capital, unemployment and consequent direct and indirect effects on the Treasury through benefits to the unemployed, and a reduction in interstate trade and agricultural production. . .

Here, the Committee report with respect to the Monetary Control Act states:

The Committee finds that where state usury laws require mortgage rates below market levels of interest, mortgage funds in those states will not be readily available and those funds will flow to other states where market yields are available. This artificial disruption of funds availability not only is harmful to potential homebuyers in states with such usury laws, it also frustrates national housing policies and programs.

S. Rep. No. 368, 96th Cong., 1st Session.

The “Brock Bill” also had a provision, as does this legislation, allowing the state legislature to reassert the state’s usury provision and, thus, override the federal legislation. The court in Stephens quoted the committee report that this provision reflected “a congressional policy of. permitting a state the primary opportunity to determine its usury statutes . . . .” This same language appears in the committee report with respect to the act under consideration here.

An override provision has been a part of other acts including the Taft-Hartliey Act, see 29 U.S.C. § 164 (b); the Federal Bankruptcy Code, 11 U.S.C. 522 (b); and the Housing and Rent Act of 1947 as amended, 50 U.S.C. App. § 1881 et seq. This provision in the Taft-Hartley Act was upheld in Retail Clerks International Association v. Schermerhorn, 375 U.S. 96 (1963), in which the court noted any resulting conflict between state and federal law would be “conflict sanctioned by Congress with directions to give the right of way to state laws barring the execution and enforcement of union-security agreements.” See also Neikirk v. State, supra. Thus, the override provision, here, merely reflects a desire or accommodation by Congress to allow the states to continue to assert their usury limits if they so wish and does not reflect a lack of authority to legislate in this area. The methods which Congress employs to carry out its power are within its discretion. See Carolene Products v. United States, 323 U.S. 18 (1944). It is unquestioned that Congress may allow states to legislate in a field of commerce in which it has only partially exercised its power to legislate. Cloverleaf Butter Co. v. Patterson, 315 U.S. 148 (1942). Of course, Congress may exercise its authority to legislate in whole or in part or it may refrain from exercising it at all. However, when it does choose to exercise its authority in an area previously deferred to the states, its actions preempt conflicting state legislation. Cloverleaf Butter Co. v. Patterson, supra; Bus Employees v. Wisconsin Board, 340 U.S. 383 (1951); and Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973). Consequently, the veto power reserved to the states, as here, does not invalidate the congressional act. The act is effective until our legislature deems it necessary to reinstate our 10% usury ceiling. So far, it has not seen fit to do so. Parenthetically, we note that our legislature adopted a resolution urging a reenactment of the “Brock Bill”, a predecessor to the Monetary Control Act here. Senate Concurrent Resolution 44 (March 8, 1979).

The dissents assail the act as being a denial of due process and equal protection of the laws under our federal constitution because of its application only to those who make loans in excess of one million dollars. This particular issue was never presented to the trial court nor is it actually argued by appellant on appeal. Even constitutional issues, if raised for the first time on appeal, will not be considered. Wilson v. Wilson, 270 Ark. 485, 606 S.W. 2d 56 (1980); Gross v. Gross, 266 Ark. 186, 585 S.W. 2d 14 (1979); Williams v. Edmondson & Ward, 257 Ark. 837, 520 S.W. 2d 260 (1975); and Kroha v. Kroha, 265 Ark. 170, 578 S.W. 2d 10 (1979). See also Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606 (1977). Here, suffice it to say, the dissents inject a gratuitous argument on an issue that was not before the trial court and, therefore, we do not consider it.

We hold the Monetary Control Act a valid exercise of congressional authority pursuant to the Commerce Clause and that the loan in question is not usurious. Therefore, the chancellor correctly awarded summary judgment in favor of appellee.

Affirmed.

Smith, Hickman and Purtle, JJ., dissent.

Darrell Hickman, Justice,

dissenting. The reconstituted majority in this case has, in my judgment, granted considerable license to the facts and law in reversing our decision of December 22, 1980. I file this dissent with the knowledge that it will not change any minds but perhaps it will in some regards clarify the issue.

The issue, as I see it, is whether a private real estate developer can avoid Arkansas constitutional provisions on usury through a federal law that deals in some regard with state usury laws.

First, it must be emphasized, as it was in our opinion dated December 22, 1980, that this is an appeal from a summary judgment. Cooper Communities, Inc., put on no evidence at all that it spent or received one dollar in interstate commerce. It put on no evidence at all that it had to borrow any money in order to stay in business. The facts, as they were presented, were that Cooper is an Arkansas real estate developer and it sold a lot in Arkansas to an Arkansan, took a promissory note from that individual and retained a lien on the lot. It was stipulated that Cooper sold lots in its real estate development aggregating over one million dollars in one year. By virtue of these facts alone it claimed that it qualified as a “creditor” under 15 U.S.C., § 1602(f), and, consequently can avoid Arkansas usury laws.

On appeal these facts were presented to us and Cooper relied solely on the interstate commerce clause of the United States Constitution as justification that this federal legislation preempted the Arkansas Constitution regarding usury.

In deciding whether this legislation was intended to preempt Arkansas law, as it is claimed in this case, we should be able to presume that Congress was fully aware of the usury provisions of the Arkansas Constitution which is unique among all the states. It provides for a penalty which forfeits the amount of the loan, not just the illegal interest charged or some other lesser penalty. For that reason, more than any other, it has been the subject of attack. It is one thing to make a loan where the only risk is the loss of a few dollars, which is the case in most states, as opposed to a lender in Arkansas making a loan where the risk is losing the amount of the loan. This court has fairly and consistently applied that usury provision to institutions as well as individuals.

Clearly Congress can preempt state law in certain areas and no doubt interest is a matter where it could elect to preempt all state laws, but it is not an area where the federal government has exercised such a predominance that the state cannot act. The question is, was this particular provision of this act intended to preempt any state action?

Based on the facts we have before us, I cannot presume that Congress intended the result that the majority has reached. I reach that conclusion with some understanding of the reason for the legislation. The particular law in question, as its predessor known as the Brock Bill, was addressed primarily to banks and savings and loan associations. According to the legislative history of these laws, the need was primarily caused by the loss of funds across state lines to other states where the institutions were paying more interest on funds than Arkansas banks or institutions could.

Regarding banks and savings and loan associations the act seems to be nondiscriminatory in every regard. It applies equally to state and federal chartered banks. It does not appear to discriminate as to the amount of the loan or the size of a bank. The same is not true regarding the provision that Cooper relies upon to avoid the Arkansas Constitution. That portion of the law is decidely discriminatory and if Cooper is permitted to use that portion to avoid Arkanas law, it will result in the law being applied in an unequal manner to a substantial group of individuals and lenders in the State of Arkansas. That provision as applied to Cooper, and as the majority holds, means that real estate developers who sell over a million dollars worth of property a year in Arkansas can avoid the usury provisions of the Arkansas Constitution. That is the way the majority defines “creditor.” Also Cooper Communities claims it has “federally-related” business under the federal law simply because it keeps a lien on the land it sells. Most lenders keep a lien on land that is sold. If such an act is “federally-related” then brushing your teeth is federally-related. Cooper Communities offered no proof that it will lose any business because of the Arkansas law. Indeed it would seem to the contrary. Its sales should flourish since it cannot charge over ten percent. It offered no proof that it would lose any funds to other states or that it had to borrow money at more than ten percent. It offered no proof as to any reason why it should come under the protection of the federal law. By granting Cooper this protection the majority necessarily holds that all other individuals or businesses in this same classification (people who sell real estate lots) who do not do over a million dollars worth of business are stuck with Arkansas’s usury law. That means that this court will have to tell that class of individuals that they must abide by Arkansas law. When it is all boiled down, it can only mean that one class is allowed to make more money than another class. One class is granted what may amount to the right to succeed in business while another class may well fail. I would suggest that it was not Congress’ intention to preempt a state law which would work such a decidely unfair result.

Was this what Congress intended? There is no doubt that Congress recognized that its law could result in discriminatory treatment. For this reason the act granted state banks equal treatment with federal banks. Section 27 (a) of 94 Stat. 164 reads: “In order to prevent discrimination against State chartered insured banks, ..." [Emphasis added.] There is no such provision that applies to that part of the act that Cooper seeks to use to avoid Arkansas law.

There is no doubt in my judgment that federal laws must, to some degree, be subject to the same tests as state laws when it comes to equal protection of the rights of citizens. While I can find no authority that says that the Equal Protection Clause of the Fourteenth Amendment to the Constitution applies to the federal government, the United States Supreme Court has indicated that federal acts are not entirely free from some constitutional test of equal treatment. See Bolling v. Sharpe, 347 U.S. 497 (1954). Furthermore, the classification imposed by Congress in its laws must be a rational one and must be one that serves a proper governmental purpose. United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973). Also, the class must be one in which all are treated equally. It could be said that all million dollar developers are treated the same but I doubt Congress intended any court to enforce that provision to a perverted result. Even if it did, I would submit that Cooper has failed to make a case to fall within the classification of “creditors.” After all, we still decide cases on the basis of facts submitted to us and as we said in our opinion of December 22, 1980, we assumed that all the evidence was presented to the trial court that the parties intended to be presented.

There are several things this case is not. It is not a case where this court must decide if Arkansas’s Constitution is unconstitutional and must be changed because of due process of law or some other constitutional guarantee. It is not a case where; the federal government intended to enact legislation to totally dominate a field of law heretofore regulated by a state. I would submit that what we have here is one part of a piece of special interest legislation in an area, which may or may not have been introduced to obviate state law.

The majority’s statement that Arkansas has not rejected this law is meaningless. To suggest that the people of Arkansas should have voted on this federal law and rejected it is nonsense. They did not know about the law. To suggest that the Arkansas General Assembly should have rejected this law is to say that it should have violatd the Arkansas Constitution. I cannot agree with the majority’s premise that the law is binding on Arkansas in every regard simply because Arkansas did not act. Arkansas has acted for many years in retaining its usury provision and its constitution should only be overriden in a case where the intent is clear and the treatment is fair and equal for all affected.

Numerous amicus curiae briefs have been filed in this case, largely by businesses or enterprises that are not directly affected by our decision. I share their concern with the state of the law. I trust that they share my concern that this court is charged with the duty of enforcing the Arkansas and United States Constitutions in an equal any even-handed manner.

I would deny the rehearing.

John I. Purtle,

dissenting. Although I generally agree with the dissent by Justice Hickman, I want to add a few words of my own. It is true, as the majority states, that the Supremacy Clause, Art. 6, Cl. 2 of the Constitution of the United States declares that the Constitution and the laws made in pursuance thereof are the supreme law of the land. I agree with this statement. I do not believe the Depository Institutions Deregulation & Monetary Control Act of 1980 was enacted pursuant to the United States Constitution. Congress may do only those things which the United States Constitution authorizes it to do. I cannot find any authority in the Constitution or the amendments thereto which I interpret to authorize the Congress to regulate interest rates between contracting parties in the various states. Any such authority must be read into some part of the Constitution. The majority seem to base their decision upon the Commerce Clause of Art. 1, § 8, even though they set out the Supremacy Clause as part of the opinion. The Commerce Clause states that Congress has power to:

(3) to regulate commerce with foreign nations, and among the several states, and with the Indian tribes; . . .

Certainly, nothing in the foregoing clause mentions usury or interest rates. The question then is: What is commerce? We all know that the shipment of goods and chattels across state lines is commerce. There must be some place where transations between parties are no longer a part of commerce. In my opinion, the limits have already been reached. The federal courts, including the United States Supreme Court, have gone far afield in classifying transactions and activities as coming under the Commerce Clause Act, Art. 1, § 8, Cl. 3, United States Constitution. However, they have not yet gone so far as to declare a loan between two parties in Arkansas to be a part of commerce.

Art. 19, § 13, Arkansas Constitution, states:

All contracts for a greater rate of interest than ten percent per annum shall be void, as to principle and interest, . . .

The contract here in question undisputedly charged a rate of interest in excess of our constitutional limit. In fact, it has been determined that the case was a test case. Had this court been aware of this fact I believe we would not have considered it. In my opinoin, the Constitution of the State of Arkansas is binding upon this court until such time as it is shown that it conflicts with the United States Constitution or the laws passed by Congress in pursuance thereof. I do not believe the Depository Institutions Deregulation & Monetary Control Act of 1980 is such a law. How can it be said that an act which attempts to regulate interest between banks, savings and loan associations and qualified millionaires is a fair and reasonable law? Certainly, there is no justification for allowing a person or corporation which sells a million dollars’ worth of property a year to charge over the legal rate of interest and prohibit individuals or corporations selling less than a million dollars a year from exceeding the constitutional limit on interest. There is an equal protection clause in the Fourteenth Amendment to the United States Constitution. Clearly, it cannot be argued that the act under consideration treats parties equally. I find no provision in either the state or federal Constitutions which provides a millionaire should be given different treatment from that of other citizens.

Until the people of Arkansas change their constitution, I will continue to uphold it unless I am convinced that there exists a clear conflict between it and the United States Constitution or a law passed by Congress in pursuant thereof. I believe the people of Arkansas have recently indicated an intention to retain their present constitutional provision relating to interest rates. In any event, it is not the duty of this court to change the laws of the State of Arkansas and certainly not to strike down any provision of the Constitution unless it is specifically required under circumstances as set out above. Therefore, I would deny the rehearing.


author: John A. fogleman, Chief Justice.

text:
    Francis Edward KLIMAS v. STATE of Arkansas
    CR 75-187
    609 S.W. 2d 46
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980

      Thurman Ragar,Jr., for petitioner.
    No brief for respondent.
   John A. fogleman, Chief Justice.

This matter reaches us upon a petition for post-conviction relief by Francis Edward Klimas, who was found guilty of burglary of the Dixie Wood Preserving Company’s building near Pine Bluff and of grand larceny of property therein. On his direct appeal, we found reversible error in the enhancement of his sentence under our Habitual Criminal Act [Ark. Stat. Ann. §§ 43-2328-30 (Repl. 1974)]. The error was in the admission into evidence of seven felony convictions in the form of certified copies of the records of the Department of Correction of Missouri State Penitentiary, which complied with the requirements of Ark. Stat. Ann. § 43-2330, but none showed that Klimas had the assistance of counsel at the times of the convictions and the state introduced no evidence that Klimas actually had the assistance of counsel at the time of any of the Missouri convictions. We reversed the judgment unless the state agreed to accept a reduction of the sentence to three years, the minimum for the charges on which Klimas was tried. Klimas v. State, 259 Ark. 301, 534 S.W. 2d 202, cert. den. 429 U.S. 846, 97 S.Ct. 128, 50 L.Ed. 2d 117 (1976). The state filed a petition for rehearing, correctly pointing out that we had overlooked the fact that evidence of six prior Arkansas felony convictions had been admitted without challenge, in addition to the Missouri convictions. We then gave the state the option of a new trial or a reduction to a sentence of 42 years. The state accepted the 42 year sentence. Klimas petitioned the United States Supreme Court for review of our decision on certiorari, but the writ was denied. 429 U.S. 846, 97 S.Ct. 128, 50 L.Ed. 2d 117 (1976).

Thereafter Klimas sought a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas under 28 USC § 2254. The denial of that petition by the district court was reversed by the Eighth Circuit Court of Appeals. Klimas v. Mabry, 599 F. 2d 842 (8 Cir., 1979). Even though Klimas had not petitioned this court for post-conviction relief under Rule 37, Arkansas Rules of Criminal Procedure, vol. 4A, Ark. Stat. Ann. (Repl. 1977), the state, for some reason, conceded in that proceeding that Klimas had exhausted his state remedies. The Court of Appeals for the Eighth Circuit vacated the order of the district court dismissing the petition for habeas corpus and remanded the case with directions to hold the petition in abeyance in order to afford the State of Arkansas the opportunity to resentence Klimas by jury in accordance with Arkansas law. Rehearing and rehearing en banc were denied. Chief Judge Gibson and Circuit Judges Henley and Ross dissented, taking the view that the State of Arkansas should be given the option of having petitioner sentenced to imprisonment for not more than 21 years or giving him a new trial on all issues. On certiorari, the United States Supreme Court on June 30, 1980, reversed the judgment of the Court of Appeals and remanded the case to that court for proceedings consistent with the opinion rendered by the Supreme Court. Mabry v. Klimas,_U.S. _100 S.Ct. 2755, 65 L.Ed. 2d 897 (1980). The remand was based upon the fact that the Arkansas courts should be given an opportunity to pass upon and decide whether Klimas was entitled to be resentenced by reason of the amendment of our recidivist statutes resulting from the adoption of the Arkansas Criminal Code which became effective oh January 1, 1976, well after Klimas was sentenced by the trial court, but before our modification of the sentence on appeal, for which we applied the law which was in force at the time of the trial and gave no regard to the law as set out in the new Criminal Code.

Although we do not know what action has been taken in the Court of Appeals for the Eighth Circuit or the District Court for the Eastern District of Arkansas, Klimas has filed his petition for permission to apply to the Circuit Court of Jefferson County, in which he was tried, for post-conviction relief under Rule 37, Arkansas Rules of Criminal Procedure, on the basis of the per curiam opinion of the United States Supreme Court.

It seems to us that the Criminal Code itself contains the answer to the question presented. It provides that an offense committed prior to the effective date of the code shall be punished in accordance with the law existing at the time of the commission of the offense. Ark. Stat. Ann. § 41-102 (3) (Repl. 1977); Campbell v. State, 265 Ark. 77 , 576 S.W. 2d 938 (1979); It is equally clear that, in Arkansas, the habitual criminal statutes make prior convictions the basis for increasing the punishment for the offense on trial. Finch v. State, 262 Ark. 313, 556 S.W. 2d 434; Osborne v. State, 237 Ark. 5, 371 S.W. 2d 518. In view of the clear answer to the question of law presented, there is no need to authorize proceedings in the trial court. See Hulsey v. State, 268 Ark. 312, 595 S.W. 2d 934.

The practice followed by us in considering the direct appeal of Klimas was followed by us in McConahay v. State, 257 Ark. 328, 516 S.W. 2d 887 and Wilburn v. State, 253 Ark. 608, 487 S.W. 2d 600 and seems to have been approved by the Court of Appeals for the Eighth Circuit in Cox v. Hutto, 589 F. 2d 394 (8 Cir., 1979). It seems to us that it has been recognized, at least by implication, by the United States courts that imposition of the lightest sentence possible, giving consideration to unchallenged convictions, is not a denial of due process of law, as we read the majority opinion in the decision of the Court of Appeals for the Eighth Circuit and the opinion of the United States Supreme Court. Klimas has never challenged the six Arkansas felony convictions introduced in evidence. Under the law in force at the time of his conviction the minimum punishment under the recidivist statutes for burglary would have been imprisonment for 21 years and the minimum punishment for the charge of larceny on which he was tried was also 21 years. As pointed out in the dissenting statement of Circuit Judge Henley, in which Chief Judge Gibson and Circuit Judge Ross joined, the circuit judge could have made the sentences for the two offenses run concurrently. Ark. Stat. Ann. § 43-2312 (Repl. 1977). In order to make certain that Klimas has not suffered any prejudice by the previous action of this court, his sentence is reduced to 21 years.

Purtle, J., not participating.

       This statute was in effect when Klimas committed the offese and remains the law today.


author: John A. Fogleman, Chief Justice.

text:
    Bobby Joe MITCHELL v. STATE of Arkansas
    CR 79-183
    609 S.W. 2d 333
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980

      James M. Barker, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Chief Justice.

Bobby Joe Mitchell was convicted of first degree murder in Ashley County, Arkansas, in March of 1969. That conviction was based on a plea of guilty and Mitchell was sentenced to life imprisonment. After Mitchell’s conviction he served a sentence in the Wisconsin State Prison. During that time he inquired of the Ashley Circuit Court regarding an appeal. In 1975, when he was in the Arkansas penitentiary serving the sentence in this case, he filed a pro se petition for post-conviction relief. The circuit court denied the petition without an evidentiary hearing. In an unpublished opinion issued June 19, 1978, we reversed the trial court and ordered an evidentiary hearing on Mitchell’s allegations that he had ineffective assistance of counsel and that his plea of guilty was not voluntary. A hearing was held in July, 1978. A record of the original proceedings of 1969 was not made a part of this record. The circuit court held that appellant was not entitled to relief from the plea of guilty entered by him on a charge of first degree murder, which, at that time might, at the discretion of a jury, be punished by imposition of the death penalty. There is no doubt that Mitchell entered his plea of guilty after consulting with his appointed counsel and upon advice from them. We will not reverse the findings of the trial judge unless they are clearly against the preponderance of the evidence.

Appellant has misdirected the focus of his argument for reversal of the circuit court’s denial of relief from his plea of guilty. He directs his attention for the most part to the question of the voluntariness of a confession made by him, saying that it was coerced by the sheriff and his deputies and that he was deprived of his right to the assistance of counsel when he was making this statement and being interrogated. The courts are not concerned with the question of deprivation of counsel during interrogation or the voluntariness of the statement Mitchell made. The only concern of the courts is whether counsel was so incompetent as to render the guilty plea involuntary and unintelligent. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657.

A guilty plea represents a break in the chain of events which has preceded it in the criminal process. In this connection, the United States Supreme Court, in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 46 L.Ed. 2d 235 (1973), said:

*** And just as it is not sufficient for the criminal defendant seeking to set aside such a plea to show that his counsel in retrospect may not have correctly appraised the constitutional significance of certain historical facts, McMann, [McMann v. Richardson, 397 U.S. 759, 25 L.Ed. 2d 763, 90 S.Ct. 1441], it is likewise not sufficient that he show that if counsel had pursued a certain factual inquiry such a pursuit would have uncovered a possible constitutional infirmity in the proceedings.

See also, Clark v. State, supra.

In Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L.Ed. 2d 747 (1970), McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L.Ed. 2d 763 (1970) and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed. 2d 785 (1970), sometimes called the Brady trilogy, the United States Supreme Court refused to address the merits of claimed constitutional deprivations that occurred prior to a guilty plea, concluding in each case that the issue involved was not the merits of the constitutional claims as such, but rather whether the guilty plea had been entered intelligently and voluntarily with the advice of comptent counsel. Toilet v. Henderson, supra.

The very situation with which we are confronted was addressed by the United States Supreme Court in McMann v. Richardson, supra. That court stated the issue thus:

The issue *** arises in those situations involving the counseled defendant who allegedly would put the State to its proof if there was a substantial enough chance of acquittal, who would do so except for a prior confession that might be offered against him, and who because of the confession decides to plead guilty to save himself the expense and agony of a trial and perhaps also to minimize the penalty that might be imposed. After conviction on such a plea, is. a defendant entitled to a hearing, and to relief if his factual claims are accepted, when his petition for habeas corpus alleges that his confession was in fact coerced and that it motivated his plea? We think not if he alleges and proves no more than this.

The matter of the defendant who deems his confession crucial to the state’s case against him but nevertheless enters a plea of guilty is treated extensively in McMann. The critical issues to be considered on application for post-conviction relief are clearly pointed out in the opinion in that case.

*** His [defendant’s] later petition for collateral relief asserting that a coerced confession induced his plea is at most a claim that the admissibility of his confession was mistakenly assessed and that since he was erroneously advised, either under the then applicable law or under the law later announced, his plea was an unintelligent and voidable act. The Constitution, however, does not render pleas of guilty so vulnerable.
As we said in Brady v. United States, ante, at 756-757 the decision to plead guilty before the evidence is in frequently involves the making of difficult judgments. All the pertinent facts normally cannot be known unless witnesses are examined and cross-examined in court. Even then the truth will often be in dispute. In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the State’s case. Counsel must predict how the facts, as he understands them, would be viewed by a court. If proved, would those facts convince a judge or jury of the defendant’s guilt? On those facts would evidence seized without a warrant be admissible? Would the trier of fact on those facts find a confession voluntary and admissible? Questions like these cannot be answered with certitude; yet a decision to plead guilty must necessarily rest upon counsel’s answers, uncertain as they may be. Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court’s judgment might be on given facts.
That a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant’s lawyer withstand retrospective examination in a post-conviction hearing. Courts continue to have serious differences among themselves on the admissibility of evidence, both with respect to the proper standard by which the facts are to be judged and with respect to the application of that standard to particular facts. That this Court might hold a defendant’s confession inadmissible in evidence, possibly by a divided vote, hardly justifies a conclusion that the defendant’s attorney was incompetent or ineffective when he thought the admissibility of the confession sufficiently probable to advise a plea of guilty.
In our view a defendant’s plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have misjudged the admissibility of the defendant’s confession. Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter, not on whether a court would retrospectively consider counsel’s advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases. On the one hand, uncertainty is inherent in predicting court decisions; but on the other hand defendants facing felony charges are entitled to the effective assistance of competent counsel. Beyond this we think the matter, for the most part, should be left to the good sense and discretion of the trial courts with the admonition that if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and that judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts.
IV
We hold, therefore, that a defendant who alleges that he pleaded guilty because of a prior coerced confession is not, without more, entitled to a hearing on his petition for habeas corpus. ***
*** As we have previously set out, a plea of guilty in a state court is not subject to collateral attack in a federal court on the ground that it was motivated by a coerced confession unless the defendant was incompetently advised by his attorney. ***
*** The defendant who pleads guilty is in a different posture. He is convicted on his counseled admission in open court that he committed the crime charged against him.
*** It is no denigration of the right to trial to hold that when the defendant waives his state court remedies and admits his guilt, he does so under the law then existing; further, he assumes the risk of ordinary error in either his or his attorney’s assessment of the law and facts. Although he might have pleaded differently had later decided cases then been the law, he is bound by his plea and his conviction unless he can allege and prove serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act.

It is clear from McMann that neither erroneous advice by counsel nor mistaken judgment is a basis for setting aside Mitchell’s plea of guilty. The question is not whether, in retrospect, counsel’s advice was right or wrong. The most that can be required is that the advice given was within the range of competence demanded of attorneys in criminal cases. It also seems from McMann, that, in order to be entitled to post-conviction relief, Mitchell must demonstrate gross error on the part of counsel when he recommended that the defendant plead guilty instead of going to trial . . . .”, or, otherwise stated, “allege and prove serious dereliction on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act.”

Appellant had the burden of showing, in the trial court, that his counsel was incompetent which cannot be met by showing mere errors, omissions, mistakes, improvident strategy or bad tactics. Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1. There is a presumption that the attorneys were competent, and the burden of overcoming that presumption was on appellant. Davis v. State, 267 Ark. 507, 592 S.W. 2d 118 (1980); Deason v. State, 263 Ark. 56, 562 S.W. 2d 79, cert. den. 439 U.S. 839, 99 S.Ct. 126, 58 L.Ed. 2d 136 (1978). Where there has been a guilty plea after advice of counsel, the burden upon the accused seeking to set the plea aside is the same as in other cases, i.e., to show that the attorney has by his acts or omissions made the proceedings a farce or mockery or that the representation was so patently lacking in competency and adequacy that it is the court’s duty to correct it. Davis v. State, supra; Deason v. State, supra.

Turning now to the record, as abstracted, we cannot say that the circuit judge’s holding was against the preponderance of the evidence. Mitchell was arrested on March 2, 1969, the day the crime with which he was charged was committed. The attorney, Johnson, met with him at 7:00 p.m. on March 3, 1969. The confession was given at 8:00 or 8:30 p.m. on March 3, 1969. On March 6, Johnson was appointed by the court as counsel for Mitchell. Thomas Cashion, a more experienced lawyer, was appointed to assist in Mitchell’s defense. On March 21, 1969, Mitchell was arraigned and entered his plea of guilty. A jury fixed the degree of the crime and set the punishment at life imprisonment, as then required by statute.

In his testimony at the post-conviction hearing, appellant testified that:

His counsel denied him the right to plead not guilty; his lawyer told him that if he did not plead guilty, he would be found guilty anyway and go to the electric chair. He asked for counsel when they first brought him to jail and they brought him one the same day. Johnson talked to Mitchell and was sitting beside him at a table while his confession was being taped, but the attorney got up and left in the middle of it, even though Mitchell had asked him to remain present while Mitchell gave it. Counsel advised him that the best thing for him was to give a confession, whether it was right or wrong. The confession was given after he was beaten all night. He had been told that, if he did not give the confession, he would be electrocuted anyway because a white man was killed. He never told the court because his attorney told him not to talk to anybody but the attorney. He told Cashion about it in the courtroom. He asked Cashion to cross-examine a witness, but Cashion told him to shut up. He asked his attorney to let him testify, but the attorney said it would be best if he did not get on the stand. He did stand up in the courtroom when the judge read the charges and pleaded guilty. He did not say anything to the judge about the voluntariness of his confession held in the judge’s chambers. The record of that hearing (which had been read to him while he was on the witness stand) spoke for itself.

Johnson testified that:

He talked to Mitchell on the evening of March 3. Mitchell did not say anything about having been beaten, or any coercion. Mitchell quite freely and openly, in a repentant sort of way told Johnson what had happened, saying that he was very sorry he had done it. Johnson advised Mitchell of his right to trial by jury, his right to plead not guilty and to have a court appointed attorney — either Johnson or someone else. After Johnson had advised Mitchell of his rights, Johnson opened the door and Mitchell told Furlow that he was ready to make a statement. Johnson left before the statement was completed because he did not consider himself Mitchell’s attorney and only came to advise him of his rights. After he was appointed, Johnson went to talk to Mitchell and to Cashion, who had also been appointed. Johnson prepared a motion for a bill of particulars. The state made its entire file available to Johnson. From the evidence contained therein and from what Mitchell had told him, Johnson concluded that it would be in Mitchell’s best interest to try to save his life. Mitchell agreed, said he did not want to go to the electric chair and admitted having committed the crime. Mitchell was totally sane and never asked to be sent to the state hospital, all the attorneys hoped for was to get a jury to accept the prosecuting attorney’s recommendation of a life sentence. At Mitchell’s request, Johnson wrote a letter to a woman with whom Mitchell had been living, advising her that Mitchell had decided to plead guilty, and that the prosecuting attorney had agreed not to ask for the death penalty and expressing the opinion that, based upon the great amount of evidence the state had against Mitchell, he had made a wise decision, and that, if he pleaded not guilty a jury might sentence Mitchell to death in the electric chair. Mitchell did not, at any time, say that he desired to make any other plea. If he had desired to do so, a different plea would have been made.

Cashion testified:

He had practiced law since 1935 and had a lot of experience in criminal trials. He had been appointed counsel in at least eight cases which involved capital felonies and five of his clients did go to the electric chair. He was more experienced in this type of case than any other lawyer in and around southeast Arkansas. The first thing he did after being appointed was to call Johnson and a decision was made to seek a bill of particulars. When it was received, it contained the names of 22 witnesses. The sheriff showed the attorneys pictures that would be introduced at the trial. After he got the bill of particulars and the saw the sheriff s file, he thought the state had a good case and thought Mitchell’s life was in jeopardy. The prosecuting attorney indicated that he would seek the death penalty. In discussions with Mitchell on two occasions, the attorneys went “over it all” and explained the alternatives. They explained the good and the bad. Mitchell made the final decision. The attorneys did not feel like gambling with his life. Mitchell never mentioned that anyone in the sheriff s department had beaten or mistreated him. Mitchell never complained, during the in camera proceeding, that he had been mistreated. Cashion had all the testimony available and had gone over it.

Of course, all conflicts and credibility questions must be resolved against Mitchell on appellate review. Thomas v. State, 266 Ark. 162, 583 S.W. 2d 32; Chapters v. State, 267 Ark. 6, 588 S.W. 2d 434 (1979).

The state’s response to appellant’s motion for a bill of particulars was comprehensive. It disclosed:

Both Oliver Leach and Marvin Gaston would testify that Mitchell had asked him if he was interested in “pulling a job.” Elgin Conley, would testify that at 5:00 a.m., on Sunday, March 2, he had seen the victim, Price, at the Esso Service Center in Crossett. He observed a black male he later identified as Mitchell at the concession stand there, wearing a cap, which he later identified, after it had been recovered from Mitchell’s home. Houston Davidson would testify that he found the cap. Larry Stephenson would testify he found the body of Price, the victim, .at about 5:45 a.m., went next door and called the police, and returned and stood guard over the body until the police arrived. John Lewis, a policeman, would testify as to pictures he had taken of the body and the bullet holes in it. Bill Jones, the coroner, would testify that he took two .22 caliber bullets from the body of Price and gave them to the police. Larry Stephens, Otis Henley and Teddy Hickman, police officers, searched the scene of the killing and found three spent .22 caliber empty shells and one shell near the body. Benny Pierce would testify that he was the owner of the service station and the employer of Price, that a sum of money was taken from a drawer, that two cartons of cigarettes were missing and that Price had been a faithful and honest employee for eight years. Kenneth Burnes, a policeman, found the money, apparently $72.15 in change, taken from the Esso station at Mitchell’s home, wrapped in a bath towel, placed in a brown paper sack and stuffed under some diapers in a chest of drawers. John Lewis, a fireman for the city of Crossett, aiding the police in a search of the Mitchell home, recovered the two cartons of cigarettes at the Mitchell home between the mattresses in Mitchell’s bed. Officers Thomas, George and Webb found a .22 caliber rifle that had been stolen from Charles Posey two weeks prior to the shooting of Price, under the house of Artis Rollins, Mitchell’s brother-in-law, who would testify that he crawled under the house and got the gun for the police, but knew nothing about the gun, the robbery, or the murder. Houston Davis found two .22 caliber shells which were the same type and brand as those used in the killing in the Mitchell home. Teddy Hickman and Otto Griffin took the rifle, shells and other bullets to State Police Headquarters for comparison. Captain Paul McDonald of the State Police would probably be the officer who would testify as to comparison of bullets found in the body with those fired from the rifle and the markings of the caps found near the body with those on two caps fired from the rifle.

Although petitioner alleged in his petition for post-conviction relief that his premises were entered and searched without a search warrant and without his consent, no evidence was introduced pertaining to that ground, and it was not otherwise mentioned. Nothing short of conjecture would justify any inference that the items of evidence were taken in a warrantless search of Mitchell’s home.

Even if the confession in this case was involuntary, the period intervening between the time it was made and the plea of guilty entered upon advice of counsel, without any intervening coercion or improper state action, would normally be taken to make the connection between the confession and the plea of guilty so attenuated as to dissipate the taint of the “involuntary” confession. See Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed. 2d 785 (1970). luParker, the Supreme Court of the United States held, as it did in McMann, that counsel’s mistake as to the admissibility of a confession in advising a defendant to plead guilty when faced with a possible death penalty under a statute later held unconstitutional, was not a basis for setting aside the plea of guilty, in spite of the fact that chances of acquittal without the confession might be good and the advice to plead guilty based upon the fact that, given the confession, the evidence was so strong that it was to his advantage to plead guilty. If the plea of Mitchell was knowingly and voluntarily entered, it is not open to attack on the ground that counsel misjudged the admissibility of his confession.

The fact that appellant was motivated by a fear of the imposition of the death penalty, even when the statute providing for it was later held unconstitutional, is not sufficient basis for setting aside a plea of guilty upon advice of competent counsel which was otherwise voluntarily and knowingly entered. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed. 2d 747 (1970). See also, Jones v. State, 267 Ark. 79, 589 S.W. 2d 16 (1979). Actually, it seems from Brady that fear of the death penalty is a perfectly valid basis for a voluntary and intelligent plea of guilty, regardless whether the plea results from the certainty or the probability of a lesser penalty. See also, Parker v. North Carolina, supra. In Brady, the court used this pertinent language:

*** For some people, their breach of a State’s law is alone sufficient reason for surrendering themselves and accepting punishment. For others, apprehension and charge, both threatening acts by the Government, jar them into admitting their guilt. In still other cases, the post-indictment accumulation of evidence may convince the defendant and his counsel that a trial is not worth the agony and expense to the defendant and his family. All these pleas of guilty are valid in spite of the State’s responsibility for some of the factors motivating the pleas; the pleas are no more improperly compelled than is the decision by a defendant at the close of the State’s evidence at trial that he must take the stand or face certain conviction.

The court in Brady also pointed out that well over three-fourths of the criminal convictions in this country rest on pleas of guilty, and that, undoubtedly, a great many of them were motivated, at least in part, by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial to a judge or jury.

We cannot say that the trial court’s finding that Mitchell’s appointed counsel were effective and that the allegations in the motion for post-conviction relief had failed was against the preponderance of the evidence.

The judgment is affirmed.

       In connection with the latter argument he emphasizes the fact that counsel was selected by a deputy sheriff.