author: John A. Fogleman, Justice. Darrell Hickman, Justice,

text:
    John F. WELLS, Individually, and The People of Arkansas upon the Relation of John F. Wells, v. Joe PURCELL, Lieutenant Governor of Arkansas et al
    79-289
    592 S.W. 2d 100
    Opinion delivered December 31, 1979
    (In Banc)

      James F. Lane, for appellants.

      Steve Clark, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellees.
   John A. Fogleman, Justice.

John F. Wells, individually and as a citizen and taxpayer of the State of Arkansas, filed his petition for mandamus in the Circuit Court of Pulaski County, seeking to compel Joe Purcell, Lieutenant Governor of the State of Arkansas, Knox Nelson, President Pro Tem of the Arkansas Senate, and John E. Miller , Speaker of the Arkansas House of Representatives, to adjourn, or attempt to adjourn, their respective chambers of the Seventy-second General Assembly, or to certify the facts of their disagreement over their adjournment date to the Governor, so he could, under his constitutional authority, declare an adjournment. Petitioner exhibited Senate Concurrent Resolution 91, by which it was resolved, with the concurrence of the House of Representatives, that upon a date subsequently to be chosen, the Seventy-second General Assembly would stand in recess until the second Monday in January, 1981, then to be adjourned sine die, unless adjournment occurred earlier.

Respondents admitted that the General Assembly was in extended recess, but denied that appellants were entitled to any relief. They exhibited Senate Concurrent Resolution 14, by which the Senate, with the concurrence of the House of Representatives, had resolved, by a two-thirds vote of each chamber, to extend the regular biennial session beyond a 60-day duration.

It has been suggested that petitioner has no standing to bring this proceeding because it is a public right, not a private one, he is seeking to enforce. It is true that the statute defining the writ states that it is granted upon the petition of the aggrieved party or of the state, when the public interest is affected. Ark. Stat. Ann. § 33-102 (Repl. 1962). Our statute on this subject has not varied materially since the adoption of the Civil Code in 1869. See § 519, Civil Code of Arkansas; § 7021, Crawford & Moses Digest; § 9001 Pope’s Digest, Ark. Stat. Ann. § 33-102 (1947). Early cases supported the contention that, where petitioners alleged no interest to be protected, other than the interest of the public, they were not aggrieved, and were not entitled to an order granting the writ, because in a matter where only the public interest is affected, the writ can only be granted upon application of the state. Fuller, ex parte, 25 Ark. 443. It was later held that when the writ is sought for the enforcement of a public right, common to the whole community, it is not necessary that the relator have a special interest in the matter, or be a public officer, but the proceeding must be in the name of the state. Moses v. Kearney, 31 Ark. 261. Although the action there was dismissed because the applicants for the writ were designated only as residents and owners of lots, there was a clear intimation that, had they applied in the name of the state, their petition should have been considered. Still later in Willeford v. State ex rel, 43 Ark. 62, a writ of mandamus was granted to compel the clerk and two justices of the peace, who were assisting the clerk in canvassing election returns from an election on the question of moving a county seat, to proceed with the count of the votes in three townships from which they were irregularly transmitted, but was denied as to the returns from another township because the chancery court had taken jurisdiction to inquire into allegations of fraudulent voting. On appeal, this court not only sustained the writ as to the vote in the three townships, but held that the chancery court had no power in the matter, reversed the denial of the writ as to the remaining township and remanded the cause with directions to the trial court to issue the writ. Moses involved an effort by the petitioners to require the clerk to remove his office from Lewisburg back to Springfield, based upon their contention that Springfield was still the county seat of Conway County. The real distinction in the two cases is that the proceeding was brought in Willeford in the name of the state upon the relation of the petitioners, while that in Moses was not.

The rule is well settled, that when, in the absence of statutory regulation, the proceedings are for the enforcement of a duty affecting not a private right, but a public one, common to the whole community, it is not necessary that the relator should have a special interest in the matter, or that he should be a public officer. Moses v. Kearney, supra; Beene v. Hutto, 192 Ark. 848, 96 S.W. 2d 485. It seems that in Beene, this court indicated that the statutory formality of proceeding by styling the action in the name of the state upon the relation of the actual petitioners (who were citizens and taxpayers of the affected county) may have been more liberally construed than in earlier cases, because the contention that the action was improperly brought, because not brought in the name of the state, was rejected upon two grounds, i.e., that a suit may be brought by a private citizen to enforce a public duty and Art. 16, § 13 of the Constitution of Arkansas specifically provides for suits brought by taxpayers to protect inhabitants of a city, county or town against the enforcement of any illegal exaction. See also, Buchanan v. Halpin, 176 Ark. 822, 4 S.W. 2d 510.

Because of the styling and allegations of the petition in this case, we need not decide whether petitioner Wells could have proceeded in his own name. The caption of the petition shows the style of the case as “JOHN F. WELLS, INDIVIDUALLY, AND THE PEOPLE OF THE STATE OF ARKANSAS, UPON THE RELATION OF JOHN F. WELLS.” It is alleged in the petition that Wells is a citizen and taxpayer and that all other taxpayers to, and citizens of, this state have an interest in the proper performance of the duty with which Wells is seeking to enforce compliance. We take this petition to be in substantial compliance with our statutory requirement that the action be in the name of the state. See Radel Concrete Products, Inc. v. Clermont County Board of Health, 107 Ohio App. 159, 152 N.E. 2d 307 (1957). We point out that the respondents have not questioned the standing of the petitioner to bring this action, either in the trial court or on appeal.

It remains, however, to be seen whether the petitioner is entitled to the relief he seeks. At the outset, we must point out that, under the common law, the writ did not run to the legislative branch of the government. People v. Best, 187 N.Y. 1, 79 N.E. 890, 116 Am. St. Rep. 586,1 Ann. Cas. 58 (1907); People v. Morton, 156 N.Y. 136, 50 N.E. 791, 41 LRA 231, 66 Am. St. Rep. 547 (1898); State v. Bachrach, 107 Ohio App. 71, 7 Ohio Ops. 2d 402, 152 N.E. 2d 311 (1958), affd. 168 Ohio St. 268, 6 Ohio Ops. 2d 425, 153 N.E. 2d 671. Although Ark. Stat. Ann. § 33-102 (Repl. 1962) clearly states the power of the circuit court to issue the writ to an executive, judicial or ministerial officer to perform an act, the performance of which is enjoined by law, there has been no statute attempting to authorize the courts to issue the writ to the legislature.

The writ of mandamus cannot be issued to the legislature, even when the duty sought to be compelled is clear and unmistakable. Fergus v. Marks, 321 Ill. 510, 152 N.E. 557, 46 ALR 960 (1926); Lamson v. Secretary of Commonwealth, 341 Mass. 264, 168 N.E. 2d 480 (1960); Scarborough v. Robinson, 81 N.C. 409 (1879).

The doctrine of separation of powers, stated in Art. 4, § 2 of our constitution, has probably been the barrier to attempts to extend the reach of the writ to the legislature. Neither of the three separate departments of government is subordinate to the other and neither can arrogate to itself any control over either one of the others in matters which have been confided by the constitution to such other department. Fergus v. Marks, supra. The legislature, under the separation of powers, can neither be coerced nor controlled by judicial power. Scarborough v. Robinson, supra; Annot. 74 Am. St. Rep. 544.

The legislature is responsible to the people alone, not to the courts, for its disregard of, or failure to perform, a duty clearly enjoined upon it by the constitution, and the remedy is with the people, by electing other servants, and not through the courts. Fergus v. Marks, supra; Fouracre v. White, 7 Boyce (Del.) 25, 102 A. 186 (1917); Person v. Doughton, 186 N.C. 723, 120 S.E. 481 (1923). See also, In re Senate Resolution 4, 54 Colo. 262, 130 P. 333 (1913).

The matter is summarized concisely in an annotation appearing in 153 ALR at p. 522, viz:

It is well settled that the courts have no power to enforce the mandates of the Constitution which are directed at the legislative branch of the government or to coerce the legislature to obey its duty, no matter how clearly or mandatorily imposed on it, with respect to its legislative function.

The Maryland Court of Appeals put the matter in the proper perspective long ago. In Watkins v. Watkins, 2 Md. 341 (1852), that court said:

In regard to that part of the argument of the learned counsel for the appellant which was based on the supposititious case, that if the foregoing reasoning be correct, the senaté might defeat both the spirit and letter of the constitution by a failure to obey its injunctions, we have only to observe, that in all human contrivances confidence must be reposed somewhere, and that under the distribution of the powers of government in our State, it is not given to the judiciary to compel action on the part of a co-ordinate branch of the government. Its authority is confined to restraining the potency of its enactments when they transcend constitutional limits.

It is appellant’s contention that the provisions of the Constitution of Arkansas clearly limit the duration of the regular biennial sessions of the General Assembly and establish a clear and unmistakable duty of the General Assembly to adjourn, or attempt to adjourn, upon the completion of regular or special session business. Appellant pointed out that the date fixed for the convening of the Seventy-third General Assembly by Ark. Stat. Ann. § 4-101 (Repl. 1976) is the second Monday in January, 1981. The petitioner quotes Art. 5, § 17 of our Constitution, which provides that the regular biennial sessions of the General Assembly shall not exceed 60 days in duration, unless by a vote of two-thirds of the members elected to each house. Petitioner álso points out that, after completion of the business enumerated in a proclamation for an extraordinary or special session of the General Assembly, it can remain in session for a period not to exceed 15 days by a vote of two-thirds of all members elected to both houses. Art. 6, § 19, Constitution of Arkansas. He also relies upon the constitutional provision that, if the House and Senate disagree over the time of adjournment of either a regular or special session, the Governor has the authority to declare the adjournment, if the facts of the disagreement are certified to him by the presiding officers of the two chambers. Constitution, Art. 6, § 20.

There is certainly no clear limitation upon the legislative power to extend the session by a two-thirds vote and no clear specification of a time beyond which, in the discretion of the General Assembly, exercised by the vote of two-thirds of the members of both houses, the session may not be extended. The determination of the date for termination of an extended session is a matter of legislative discretion.

It must always be remembered that the state’s constitution is neither an enabling act nor a grant of enumerated powers, and the legislature may rightfully exercise the power of the people, subject only to restrictions and limitations fixed by the constitutions of the United States and this state. Jones v. Mears, 256 Ark. 825, 510 S.W. 2d 857; St. L. I. M. & S. Ry. Co. v. State, 99 Ark. 1, 136 S.W. 938. Under our system of government the legislature represents the people and is the reservoir of all power not relinquished to the federal government or prohibited by the state constitution. Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W. 2d 85; Hackler v. Baker, 233 Ark. 690, 346 S.W. 2d 677.

Adjourning and extending a legislative session are clearly among the powers of the General Assembly. It has exercised its powers. Even if they have been exercised erroneously, it is clear that the Circuit Court of Pulaski County had no power, without violating Art. 4, § 2 of the Arkansas Constitution and extending the scope of the writ of mandamus, to issue the writ to that body. Assuming, however, that the General Assembly had been subject to that writ, mandamus could not have been used to correct an erroneous decision already made. Burney v. Hargraves, 264 Ark. 680, 573 S.W. 2d 912.

Appellant contends, however, that the actions of the presiding officers of the two houses of the General Assembly can be controlled by mandamus. He does not specify just what these presiding officers should be required to do. Mandamus will not lie to compel the presiding officer of the senate or the speaker of the house to perform any act which is within his legislative functions, except for acts which are purely ministerial in character. State v. Bolte, 151 Mo. 362, 52 S.W. 262, 74 Am. St. Rep. 537 (1899); Kavanaugh v. Chandler, 255 Ky. 182, 72 S.W. 2d 1003, 95 ALR 273 (1934). See Annot., 66 Am. St. Rep. 556, 18 Am. Dec. 239. The only act on their part, which could be said to be ministerial, is to certify the disagreement of the two houses to the Governor, so he could adjourn the session. But the two houses are not in disagreement, even if they are in error. These officers are totally devoid of power to act in the matter. The courts have no supervisory powers over the legislature, a separate and coordinate branch of government. In re Love's Estate, 186 N.C. 714, 120 S.E. 479. To undertake to compel the presiding officers to act contrary to the action of their respective houses would constitute an attempt to supervise those actions, in violation of Art. 4, § 2. Mandamus cannot be used to undo legislative action or to compel revocation or rescission of legislative action in violation of the doctrine of separation of powers. State v. City of Shreveport, 231 La. 840, 93 So. 2d 187 (1957).

The eyes, ears and hands of the presiding officer of a house of the General Assembly are those of the house; he carries forward that which the house determines; and it would be intolerable that the presiding officer, even if he be the lieutenant governor, of a house should have the power to act against its will and determination or to refuse to act in defiance of its will. State v. Corley, 36 Del. 135, 172 A. 415 (1934). It has been held that the courts have no power under the separation of powers, by mandamus or otherwise, to interfere in any manner with the proceedings of either of the component branches of the General Assembly, or even with the actions of its clerks, so long as they are acting in obedience to the will of those bodies. Fox v. Harris, 19 W. Va. 419, 91 S.E. 209 (1917).

The authority of the appellees and respondents, the Lieutenant Governor, the President Pro Tem, and the Speaker, seems to us to be strictly limited, in the matter before us. We would not know how to specify what they should do, if we should order that the writ be granted. It would certainly be contrary to the separation of powers for a court to order them to act contrary to the expressed will of the bodies over which they preside.

The writ of mandamus does not create or confer authority upon the officer to whom it is directed. It should be directed to those whose duty it is to do the thing required. It must clearly appear that the person to whom it is directed has the absolute power to execute it; otherwise it should not be issued. Where the duty sought to be enforced is imposed upon the senate and the house and those bodies have refused to do that which is sought to be compelled, neither the president of the Senate nor the Speaker of the House has the power, without the concurrence of the house over which he presides, to execute the order, if made. Turnball v. Giddings, 95 Mich. 314, 54 N.W. 887, 19 LRA 853 (1893).

One seeking a writ of mandamus must show a clear, certain and specific legal right and the absence of any other specific, adequate legal remedy. Arkansas State Highway Employees Local 1315 v. Smith, 257 Ark. 174, 515 S.W. 2d 208; Bunting v. Tedford, 261 Ark. 638, 550 S.W. 2d 459; Girley v. Wood, 258 Ark. 408, 525 S.W. 2d 454. The purpose of the writ is to enforce the performance of a duty or a legal right after it has been established and not to establish a legal right. Kirkwood v. Carter, 252 Ark. 1124, 482 S.W. 2d 608; Brown v. Curtis, 254 Ark. 162, 492 S.W. 2d 235. The duty to be enforced by mandamus must be one which is clearly, specifically and peremptorily enjoined by law. Arkansas State Highway Employees Local 1315 v. Smith, supra. Where petitioner is not clearly entitled to the relief sought, this extraordinary writ will not be granted. Henderson v. Dudley, 264 Ark. 697, 574 S.W. 2d 658; Brown v. Curtis, supra. Mandamus may not be used to determine in advance what the petitioners’ rights are or the action to be taken shall be. Bunting v. Tedford, supra.

Appellant has failed to show a clear, certain, specific or established legal right which can be enforced by writ of mandamus to the presiding officers of the houses of the General Assembly. The courts cannot interfere with the legislature or the legislative process; they can only determine the validity of its acts. State v. Meyers, 38 Wash. 2d 330, 229 P. 2d 506 (1951).

The circuit court properly denied mandamus.

The judgment is affirmed.

Harris, C.J., not participating.

Hickman, Smith, and Purtle, JJ., concur.

Darrell Hickman, Justice,

concurring. While I agree that mandamus is not a proper remedy in this case, the constitutionality of the General Assembly’s extension of its regular session is too important a question to ignore. The law is well settled that a legislature cannot enact legislation after the expiration of its session. State, ex rel Heck’s Discount Center, Inc. v. Winters, 147 W. Va. 861, 132 S.E. 2d 374 (1963). See also, Dillon v. King, 87 N.M. 79, 529 P. 2d 745 (1974).

The General Assembly convened for its regular 60 day session early in 1979. It recessed on April 20, 1979, and is to remain in recess until the second Monday in January, 1981, approximately when its next regular session is to begin. While the legislature has apparently gone home, it has left the door open to recall itself at any time. It is at least possible that such a procedure infringes on the governor’s prerogative under the Arkansas Constitution to call the General Assembly into special sessions. See ARK. CONST., Art. VI, § 19.

The Arkansas Constitution provides that the General Assembly shall meet bienially for 60 days and may extend a session only by a vote of two thirds of the members of each house. ARK. CONST., Art. V, § 17. No doubt it was intended that an extended session would be used by the General Assembly to finish its business. I do not believe that the Arkansas Constitution can be fairly read to mean that the legislature can remain in session at all times.

This procedure may violate the doctrine of separation of powers in other ways. One of the reasons given by the General Assembly for going into this extended session, as it is called, is so that it may reconsider any bills disapproved by the governor. The Arkansas Constitution would seem to grant to the governor the right, at the end of its regular session, to veto any bills without the fear that the veto power would be thwarted. The General Assembly may, by holding itself ready at all times to reconsider a bill vetoed by the governor, have crossed that vague line of the separation of powers guaranteed by the constitution. ARK. CONST., Art. IV, § 1 and Art. VI, § 2.

This practice by the General. Assembly has apparently been going on for some years but it should be reconsidered. The simple fact that a definite date has been set for the termination of the extended session may not save such a practice, especially when that date is an unrealistic one, one that cannot be satisfactorily defended except by a severe strain on the interpretation of the Arkansas Constitution.

While we do not have the authority to mandamus the General Assembly regarding its business, we do have the responsibility to pass on the acts of the General Assembly and it may well be that any action taken by the General Assembly during such a session will be illegal, a consequence no doubt the General Assembly would not welcome.

George Rose Smith and Purtle, JJ., join in the concurrence.


source: Caselaw Access Project

author: John A. Fogleman, Chief Justice.

license: Public Domain

text:
    James IRONS v. STATE of Arkansas
    CR 79-179
    591 S.W. 2d 650
    Opinion delivered January 7, 1980

      Thomas L. Cashion, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Chief Justice.

We are tremendously handicapped in our review of this appeal from the denial of appellant’s petition for post-conviction relief under Rule 37 of the Rules of Criminal Procedure by the mysterious abandonment of virtually all the grounds of the petition on appeal. The only point for reversal is: “The Court erred in not setting aside the verdict because the record does not show where an attorney was ever appointed for the defendant.” This point might be summarily disposed of because the record clearly shows that an attorney was appointed for appellant more than a year before he entered the plea of guilty. The argument in appellant’s brief does not appear to be consistent with the statement of the point. The entire argument is as follows:

Appellant only has one argument and that is that he does not remember anything that allegedly happened. That he was intoxicated and cannot remember when in an intoxicated state. The record does not indicate that he was advised of his rights or properly appointed attorney.
Appellant states further that for the reasons set out above that the sentence be vacated and that he be released from his present confinement.

The scope of the argument is broader than the point stated. This argument could properly be disposed of under the rule of Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606. Instead, we have reviewed the record as abstracted and find reversible error.

Appellant was sentenced to 15 years on July 18, 1978, upon his plea of guilty to a charge of raping his daughter, then 12 years of age, on April 7, 1977. This plea was entered after observation of appellant at the Southeast Arkansas Mental Health Clinic, and several continuances of his trial. The clinic had reported that appellant was without psychosis, appeared to understand the charges against him, and seemed to be responsible for his actions at the time of the report.

Appellant’s motion under Rule 37 was filed February 26, 1979. Appellant alleged that:

1. He was questioned at length on several different occasions without an attorney present to represent him during all phases of the interrogation period.
2. He was represented by an appointed attorney, who made no effort to defend him, but threatened him with an excessive sentence should he desire a jury trial.
3. He was arrested without a warrant.
4. He was denied a preliminary hearing.
5. The prosecuting attorney presented false statements before the court.

Since appellant entered a plea of guilty, he is precluded from raising a defense on this appeal. Thacker v. Urban, 246 Ark. 956, 440 S.W. 2d 553; Cromeans v. State, 242 Ark. 464, 414 S.W. 2d 399. The matter of his intoxication was not a matter properly to be considered on a petition for post-conviction relief. This relief is not available to one who could have raised the issue asserted on collateral attack in the trial court before sentencing, but did not. Coleman v. State, 257 Ark. 538, 518 S.W. 2d 487. For the same reason, the question of the voluntariness of his pretrial confession is not itself a basis for post-conviction relief. These matters are significant only in relation to the charge of ineffective assistance of counsel. The alleged denial of a preliminary hearing and the alleged falsity of the statements of the prosecuting attorney fall into the same category. See Keating v. State, 255 Ark. 638, 501 S.W. 2d 607.

When there is a collateral attack on a plea of guilty, rendered upon advice of counsel, the inquiry is not addressed to the merits of claims of constitutional deprivation prior to the entry of the plea, but it is focused upon the question whether the plea had been made intelligently and voluntarily upon advice of counsel. Such deprivations are pertinent only in evaluating the advice rendered by counsel. Horn v. State, 254 Ark. 651, 495 S.W. 2d 152. If appellant’s plea of guilty was entered voluntarily and was not the result of ineffective assistance of counsel, any other possible defenses, except for jurisdictional defects, were waived by him. Horn v. State, supra; Rimmer v. State, 251 Ark. 444, 472 S.W. 2d 939; Wilson v. State, 251 Ark. 900, 475 S.W. 2d 543. His petition does not assert any jurisdictional defects.

Our inquiry is confined, then, to the question whether the plea of guilty was voluntary and not the result of ineffective assistance of counsel. We begin with the presumption that counsel was competent. Horn v. State, supra. We might also infer that the alleged “threats” of counsel that, if appellant went to trial, he would get a sentence of more than 50 years and it would tear up appellant’s family, do not show ineffective assistance of counsel, because, if there was sufficient evidence to show that he committed the crime with which he was charged, such a sentence would not be an unlikely one, and “tearing up a family” would not be an unusual consequence.

Appellant’s allegations did entitle him to the hearing he was accorded on the question of ineffective assistance of counsel. Cullens v. State, 252 Ark. 995, 482 S.W. 2d 95. The burden of proving his allegations rested upon petitioner. The trial court held that he failed to meet that burden. In order to overturn that holding, we would have to find that it is clearly against the preponderance of the evidence. Porter v. State, 264 Ark. 272, 570 S.W. 2d 615.

Appellant testified that his appointed attorney, David Powell, visited him in jail a couple of times, and that he had contacted his attorney during the eleven months he was at liberty on bond awaiting trial. He said that the attorney did not go over the case with him because there was nothing to go over and because appellant was stuck with a false statement, which Irons denied having made to the investigating officers. He stated that Powell did not want to hear anything about the statement and only wanted to hear about the case. He said that he told Powell that he knew nothing about the charge and that he had been drunk and was on the floor when he was awakened at about 2:30 a.m. on the date of the alleged rape.

Irons testified that he had made this incriminating statement after he had several times requested and been denied an attorney both before answering any questions and while being questioned. He said that he made this incriminating statement upon the understanding that he would be sent to the state mental hospital for help he needed in connection with his drinking, and that this statement, prepared by an officer, would help in getting him admitted. The statement Irons signed related that he was intoxicated at the time of the alleged occurrence and didn’t remember what had happened; that he did remember having picked up his children at his brother’s house and having played dominoes and eaten some eggs with them, after which he sent all of them except Gloria to the front room and sent her to the bedroom, where he later went, pulled off her panties and laid down and tried to have intercourse with her, but did not know whether he did or not; and that he then told Gloria to go take a bath, but remembered nothing after that until his wife awakened him at about 2:00 a.m. At that time, his pants were unzipped but his belt was still fastened.

The record in this case does not reflect any compliance with Rule 24.5, Arkansas Rules of Criminal Procedure; Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); and Byler v. State, 257 Ark. 15, 513 S.W. 2d 801. This rule, and the cases cited, require that the trial judge ascertain whether a plea of guilty is voluntary. There is no constitutional requirement that the trial judge make the explanations of the right to jury trial and of the maximum possible sentence required by Boykin, and a silent record does not require automatic reversal, if it be proved at a post-conviction evidentiary hearing that the plea was voluntarily and intelligently made. Smith v. State, 264 Ark. 329, 571 S.W. 2d 591. On the record before us, under the holding in Smith, the question is whether the plea was intelligently and voluntarily made. The burden, which would otherwise have been on appellant, fell upon the state at the post-conviction hearing as to the plea of guilty, in view of the absence of any record of the proceeding when the plea of guilty was entered. The key question on a record like this is whether the deficiencies in the proceedings were supplied by the record made at the post-conviction hearing. Byler v. State, supra. The findings of the trial court would so indicate.

We are unable to find an appropriate basis for the trial court’s findings. The record, as abstracted by appellant’s attorney, shows that a hearing on a motion to suppress appellant’s statements as involuntary was set, but no disposition of that motion is shown by the record. The. attorney who represented Irons did not testify. Appellant’s testimony stood uncontradicted. He said that he told his attorney he would not enter a plea of guilty, and that he did not plead guilty of his own free will, but did so because his attorney told him if he went to trial they would tear his family up and he would get 50 years, because “they” wanted him to plead guilty. He also testified that, when he appeared before the judge for the entry of a plea, he told the judge he was not guilty, but that he would take the 15 years the state had offered to recommend. When the judge refused to accept that plea, Irons said that he said, “Well, I’m not guilty, but I plead guilty and take the fifteen” and that this was the way the plea went down. He stated that he was not satisfied with his attorney, and that he thought he had gotten a bad deal from the law officers. Irons said that he had never been in court before.

It may well be that a proper plea agreement, advantageous to Irons, had been entered into, and properly carried into effect, but the record does not so disclose. It was mandatory that the trial court determine whether the plea was the result of a plea agreement, require that the agreement be stated, and, if the judge had not previously concurred in the agreement, advise the defendant that the agreement was not binding on the trial court and that the disposition, if the plea was entered, might be different from that contemplated by the agreement. McGee v. State, 262 Ark. 473, 557 S.W. 2d 885. It was also mandatory that the trial judge determine whether there was a factual basis for the plea. Rule 24.6, Arkansas Rules of Criminal Procedure.

It may well be that there was full compliance with all the requirements essential to sustain the plea of guilty. We do not hesitate to say that all deficiencies in the record of the plea proceedings might have been corrected by evidence of compliance presented at the Rule 37 hearing. But the state totally failed to make the necessary showing. The prosecuting attorney did not resist appellant’s request for a jury trial and left the matter with the court. We cannot, on the record made in the trial court, justify affirming this judgment, in spite of the unsatisfactory presentation of the matter on behalf of appellant. So far as this record discloses, the assistance of appellant’s appointed trial counsel wás ineffective and appellant’s plea of guilty was not intelligently and voluntarily made.

The judgment of the trial court is reversed and the cause remanded with directions to set aside the sentence imposed and the judgment of conviction, and for further proceedings on the charge against appellant.

Stroud and Mays, JJ., not participating.


author: George Rose Smith, Justice.

text:
    Felix Vaughan TAYLOR v. David PARTAIN, Judge
    CR 79-184
    591 S.W. 2d 653
    Opinion delivered January 7, 1980
    (In Banc)

      Wiggins, Christian & Garner, for petitioner.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for respondent.
   George Rose Smith, Justice.

The question is: Should a prosecution for unlawful failure to file a 1976 Arkansas income tax return be brought in Sebastian county, where the taxpayer was a resident, or in Pulaski county, where the law required that the return be filed? The Sebastian Circuit Court overruled the defendant’s motion to dismiss for want of jurisdiction and venue. We granted a temporary writ of prohibition and now hold that Pulaski county is the proper venue.

The information charges that Taylor failed to file his return on May 15, 1977, which was its statutory due date. Ark. Stat. Ann. § 84-2027 (Repl. 1960). The return must be filed with the Commissioner of Revenues at his office at Little Rock (in Pulaski county). Id. Failure to make any return, with intent to evade the requirements of the statute, is a misdeme.anor. § 84-2036 (6).

The general rule is that a failure or omission to act, such as the failure to file a document in a certain county, is an offense committed in the county where the act should have been performed. State v. Civella, 368 S.W. 2d 444 (Mo., 1963), citing authority. We followed the general rule in Louisiana & Ark. Ry. v. State, 85 Ark. 12, 106 S.W. 960 (1907), where the statute made it a misdemeanor for the railroad company to fail to build a station at a certain point on its line. We held that the failure to build the station was an offense in the county where it should have been built, not in the county where the company had its domicile.

The Attorney General argues, however, that the income tax law provides that the failure to do any act required by the statute shall be deemed “an act committed in part at the office of the Commissioner in Little Rock.” § 84-2036 (9). Even so, the statute does not say that the failure shall also be deemed to be an act committed in part at the taxpayer’s residence. The statute, it must be noted, applies as well to nonresident taxpayers, whose actions outside this state are not being made a criminal offense in Arkansas. Moreover, the statute refers only to “any act required by or under the provisions of’ the income tax law. That law did not require this taxpayer to do any act in Sebastian county. It did require him to file a return in Pulaski county.

A similar argument was rejected by the United States Supreme Court in United States v. Lombardo, 241 U.S. 73 (1916). There the statute required that a certain written statement be filed with the Commissioner General of Immigration, in Washington, D.C. The defendant, a resident of Seattle, Washington, was charged there with having failed to file the statement. The prosecution argued that since the statement could have been deposited in the mail in Seattle, though the statute did not specify that action, the offense should be deemed a continuing one that occurred both in Seattle and in Washington, D.C. The court pointed out that “filing” is not complete until the document is delivered and received. “Anything short of delivery would leave the filing a disputable fact, and that would not be consistent with the spirit of the act.” Furthermore, for the courts to create a continuing offense when the statute had not done so would create needless confusion.

The same thing is true in the case at bar. If we should go beyond the language of the income tax statute by saying that the offense occurred also in Sebastian county, then this taxpayer or another in his situation might raise an issue of fact by proof that he was not in the county on the due date of the return or that he customarily signed his return forms in the office of an accountant or tax consultant in an adjoining county, who also mailed them. We see no reason to create the possibility of uncertainty when the legislature intended that none should exist.

The writ of prohibition is granted.

Stroud and Mays, JJ., not participating.


author: John I. Purtle, Justice.

text:
    CULLUM & BOREN-McCain Mall, Inc. v. James E. PEACOCK et al
    79-282
    592 S.W. 2d 442
    Opinion delivered January 7, 1980
    (In Banc)
    [Rehearing denied February 11, 1980.]

      Barber, McCaskill, Amsler, Jones & Hale, for appellant.

      McMath, Leatherman & Woods, P.A., by: Phillip H. McMath, for appellees.
   John I. Purtle, Justice.

We have considered the jurisdictional statements of the parties in taking this case for consideration. It is our opinion that Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), Rules 401,402and403 are required to be interpreted in deciding this case.

Appellees recovered a judgment, in the Pulaski County Circuit Court, against appellant, Cullum & Boren, as a result of appellee, James E. Peacock, being shot by one Francis T. Blodgett, with a handgun purchased from appellant. Recovery was based upon common law negligence of appellant in selling the handgun to Blodgett. This appeal is from the jury verdicts in favor of James E. Peacock in the sum of $170,000 and for his wife, Charlotte Peacock, in the sum of $30,000.

The judgment was against Blodgett, who does not appeal, and appellant, jointly and severally. On appeal it is urged that the trial court erred in three respects: (1) In failing to grant a directed verdict for appellant, (2) allowing the desposition of Blodgett to be presented to the jury, and (3) in failing to hold as a matter of law that appellant could not be more negligent than Blodgett. We agree the deposition of Blodgett regarding his consultation with a psychiatrist more than 13 years previous to the shooting was prejudicial error. We do not reach the question of comparative negligence because a retrial may not present the same question.

The facts reveal Francis T. Blodgett appeared at Cullum & Boren at the McCain Mall in North Little Rock, Arkansas, on February 15, 1978, and sought to purchase a .38 pistol. The manner in which Blodgett inquired about the purchase aroused the suspicion of the salesman, McDonald. When Blodgett selected the pistol he wanted, he did not have enough money to pay for it. Therefore, he left the store with the declared intent of obtaining additional money for the purchase of the pistol he had selected. While Blodgett was gone McDonald requested John Moore, a fellow employee of Cullum & Boren, to observe Blodgett upon his return in order to determine whether he thought Blodgett was acting strangely. Upon Blodgett’s return McDonald engaged him in conversation and observed him to the extent he was satisfied Blodgett was a suitable person to purchase the pistol. During the conversation prior to the purchase, Blodgett stated he had recently been burglarized and wanted to purchase a gun that would make a big hole. There is a dispute as to whether he stated he wanted one which would make a big hole in a man. Blodgett experienced no difficulty in filling out the handgun purchase form (ATF #4473) required when a person purchases a firearm. The purchaser appeared calm and answered all questions without assistance. After Blodgett left the store, McDonald went to the front and discovered Blodgett was apparently loading the gun while seated in his vehicle in the parking lot near the appellant’s store. This upset McDonald and he notified his supervisor, Charlie Keck, who called the Jacksonville police to report the incident. It is disputed whether Keck told the officer that Blodgett had stated he wanted a gun which would “make a big hole in a man” or whether he stated he wanted one “which would make a big hole.” In any event, Blodgett shortly appeared at Peacock’s office and shot him about three times, without any known reason.

The jury answered interrogatories which set the damages at $170,000 for Peacock and $30,000 for his wife. The negligence was apportioned on 25% to Blodgett and 75% to Cullum & Boren.

We first consider the question of whether the trial court -should have granted a directed verdict. The issues were presented to the jury solely on the theory of common law negligence on the part of Cullum & Boren. We do not believe the case of Franco v. Bunyard, 261 Ark. 144, 547 S.W. 2d 91, cert. denied, 434 U.S. 835 (1977), has any application to the present case. In Franco we held the failure to follow the federal gun control act in selling a firearm was evidence of negligence. However, in the present case the evidence is undisputed that the gun control act was followed. There is no Arkansas statute relating to the sale of firearms to individuals by retailers. The General Assembly, which speaks for the people of Arkansas, has not seen the need to enact legislation regulating the sale of handguns. It is not the function of the courts to enact legislation. Therefore, there is no statutory negligence to be considered in the present case.

We find sufficient evidence in the record of this case to justify submitting the case to the jury against appellant on the grounds of common law negligence. On appeal we consider the evidence in the light most favorable to the appellee. It was a question of fact whether Blodgett requested a weapon which would blow a big hole in a man. Obviously appellant’s employees were suspicious of the purchaser. We cannot say as a matter of law there was no substantial evidence upon which the jury could have reached its verdict.

We next consider the question of whether the court erred in admitting that portion of Blodgett’s deposition which indicated he had been treated by a psychiatrist between 1960 and 1965, the latest treatment having occurred more than 13 years prior to the date of the incident upon which this cause of action is based. Blodgett had been under the treatment of a physician for a number of years prior to this incident. The present attending physician indicated Bodgett was reacting normally to the medication which was being prescribed. Admittedly, there was a possibility that Blodgett could have saved up his medicine and taken what amounted to an overdose at any particular time. However, this is a possibility which does not rise above speculation. There was no evidence whatsoever presented at the trial to indicate that Blodgett was suffering from mental disease which related back to 1965. In fact, the earlier treatment was not for a mental disease so far as the record shows. We think this evidence was controlled by Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), Rules 401, 402 and 403. These rules are as follows:

Rule 401. “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Rule 402. All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible.
Rule 403. Although relevant, evidence may be ex-eluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The evidence of the previous psychiatric consultation is governed by these rules. Although it may be argued the evidence was relevant, it may be fairly said that its probative value is substantially outweighed by danger of unfair prejudice, confusion of the issues, or was misleading to the jury. It seems likely the jury may have relied upon this evidence which in reality had no connection with the shooting that occurred on February 15,1978. There simply is no connecting evidence between the prior psychiatric treatment and the present condition of Blodgett. We do not believe that the evidence of his prior psychiatric consultation hád any tendency to make the existence of the allegations in this case more probable or less probable than it would have been without the evidence. Introduction of this portion of Blodgett’s deposition constituted prejudicial error.

As to whether Cullum & Boren could be found more responsible than Francis T. Blodgett is not considered at this time because on retrial the responsibility may not be apportioned in the same manner.

For the above reason the case is reversed and remanded for a new trial.

Reversed and remanded.

Stroud and Mays, JJ., not participating.


author: John A. Fogleman, Chief Justice. A. D. McAllister, Jr., Special Justice,

text:
    Eddie POWELL, Mayor of the City of North Little Rock et al v. Frank HENRY et al
    79-129
    592 S.W. 2d 107
    Opinion delivered January 14, 1980
    (In Banc)

      Jim Hamilton, for appellants.

      John T. Harmon, Judith A. Rogers and Tommy H. Russell, by: John T. Harmon, for appellees.
   John A. Fogleman, Chief Justice.

On December 30, 1976, the Chancery Court of Pulaski County entered a decree in an action brought by Frank Henry and others against the mayor and aldermen of North Little Rock and the manager of the North Little Rock Electric Department, holding that the city improperly charged their electrical customers $639,226.24 and ordering a refund, on a pro rata basis. The court denied a request for allowance of attorney’s fees to the attorneys representing the customers in the litigation which resulted in the decree. On February 25,1977, the plaintiffs in the action filed a motion for clarification, stating that the court had misinterpreted their prayer for payment of attorneys’ fees as a prayer for judgment against the defendants for those fees, in addition to the amount of the overcharge, when they had actually requested that these fees be paid from the refunds made to the customers. On March 9, 1977, the chancery court modified its previous decree to require the city to bear all costs of the refund and pay interest on any refunds due but unpaid after April 30, 1977, and retained jurisdiction on the question of allowance of attorneys’ fees to plaintiffs’ attorneys. On April 1, 1977, the chancery court presided over by a chancellor on assignment, ordered the payment of $95,884.31 as attorneys’ fees to John Harmon, Tommy H. Russell and Judith Rogers, who had represented the customers in the litigation. On May 4,1977, the chancery court, with the regular chancellor presiding, set aside this order, but reinstated it on December 27,1978, after a rehearing on the matter. Appellants appeal from this last order or decree, asserting the following points for reversal:

I
PLAINTIFFS’ ATTORNEYS MAY NOT RECOVER ATTORNEYS’ FEES IN QUANTUM MERUIT, BUT MUST RECOVER ON THEIR CONTRACT WITH PLAINTIFFS.
II
ACT 822 of 1977 (CODIFIED AS ARK. STATS. ANNO. § 84-4601) IS NOT APPLICABLE TO THE PRESENT CONTROVERSY.
III
A REASONABLE AMOUNT OF ATTORNEYS’ FEES SHOULD NOT EXCEED 5 PERCENT OF THE TOTAL RECOVERY OF THE TAXPAYERS’ ACTION.

We find no reversible error and affirm the decree.

I

Appellants contend that the attorneys for the plaintiffs in the action were limited to the fee of 25% of the recovery of the original plaintiffs employing them, relying upon Terral v. Poe, 190 Ark. 346, 79 S.W. 2d 69, insofar as it related to a division of attorney’s fees between Terral and Poole. We are unable to see any comparison between that case and this. There Poole, an attorney, accepted employment by Terral as an associate in the trial of two cases for a fee of $100 per cause. When there was a rather large recovery in the two cases, Poole sought to recover $775.62, or 25% of the total fees, on the basis of quantum meruit. We held that Poole was bound by his contract and limited to the fee to which he agreed in the contract. This case might furnish some precedent in a contest between these attorneys and the named rate paying plaintiffs in the litigation. If any of these clients are complaining of the allowance made, it is not reflected by the record. As we understand the record in this case, the action was a class action, which resulted in the recovery of a substantial amount which constituted a common fund. The allowance of attorneys’ fees from a common fund established or augmented through the efforts of the attorneys to whom the fee is allowed is a well recognized practice and is proper. Bradshaw v. Bank of Little Rock, 76 Ark. 501, 89 S.W. 316; Valley Oil Co. v. Ready, 131 Ark. 531, 199 S.W. 915; Marlin v. Marsh, 189 Ark. 1157, 76 S.W. 2d 965.

We do not consider that our holding in City of Ft. Smith v. Southwestern Bell Telephone Co., 220 Ark. 70, 247 S.W. 2d 474, is applicable here, or that it is contrary to the holding in the cases just cited. There nine cities sought to have the fees of their attorneys paid for a proceeding in which they successfully protested a telephone rate increase and refunds to subscribers were ordered. The basis of that decision was that these attorneys were representing the cities, not the rate payers. Here the situation is quite different. The attorneys were representing the rate payers in litigation against the city.

In arguing this point, appellants complain that it is extremely difficult for the court to determine the value of the service of these attorneys, in view of the fact that they did not keep time records and only provided subjective and self-serving estimates as to the time spent on the case. Appellants then assert that the burden of providing accurate and ascertainable records of time spent on behalf of the plaintiffs should be on these attorneys. This argument, which is only stated, without citation of authority, is not convincing and might well be disposed of under the rule of Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606. It would have been desirable to have had time records, if they were kept, but there is not now, and never has been, any rule of law or procedure in this state that requires submission of time records in support of a request for payment of attorneys’ fees. While the time spent is an important element to be considered in determining the reasonable value of an attorney’s services, it is not the controlling factor and is sometimes a minor one. Love v. U.S. F. & G. Co., 263 Ark. 925, 568 S.W. 2d 746. We have recently had occasion to address our attention to the relationship of time records and the expenditure of time in relation to the allowance of attorney’s fees in Lytle v. Lytle, 266 Ark. 124, 583 S.W. 2d 1 (1979). There we found that other factors were just as important as the time devoted to a case. In Marlin v. Marsh, supra, we pointed out that the amount of the recovery was important and indicated that the trial court properly took into consideration the ability of counsel, the nature and extent of the services rendered and the result obtained. The chancellor who made the allowance here, and whose action was reinstated by the regular chancellor, took these factors into consideration. Although such allowances should not be entirely on a contingent fee basis, they should be such that competent lawyers would not refuse to accept employment in cases of this sort. Old Republic Insurance Co. v. Alexander, 245 Ark. 1029, 436 S.W. 2d 829. Naturally, the uncertainty of ultimate recovery is an element to be considered in accomplishing this purpose. We do not consider that the allowance of 15% of the recovery put the allowance on a contingent fee basis. It was an appropriate means of distributing the burden.

II

We agree with appellants and appellees that Act 822 of 1977, which was passed, and became effective, after the entry of the original decree in this case, is inapplicable. Furthermore, we do not understand the decree to be based upon the act.

Ill

Appellants again emphasize the failure of the attorneys to keep detailed time records. They point out that according to their testimony, Harmon estimated that he spent 25 hours per week, Russell estimated 12 hours per week, and Rogers estimated an average of 10 hours per week, during the pend-ency of the cases. Appellants then calculate that multiplying these estimated hours for the period of 16 weeks that the litigation was pending by a factor of $75 per hour, which they say was shown to be reasonable by the attorneys at the hearing, produces a total of $58,800, which is less than two-thirds of the award, but considerably more than the 5% appellants consider reasonable. Although accurate time records would have been helpful in considering the reasonableness of the fee allowance in this case, it is our position that time spent is only one significant factor in such considerations. Lytle v. Lytle, supra. Other factors in this case are at least equal in importance, and may perhaps carry considerably greater weight.

Appellants seek to establish a basis for their position that 5% of the refund was a reasonable fee allowance by referring us to cases involving class actions where the fund involved ranged from $137,600 to $7,200,000 and attorneys’ fees were not allowed on a percentage basis. By arithmetical calculation they arrive at percentages ranging from 4% to 5% of the funds involved in those cases, as against 15% allowed in this case. Appellants then somehow translate our reduction from $15,000 to $10,000 of the fee allowed in apartition suit (Cole v. Scott, 264 Ark. 800, 575 S.W. 2d 149) into an expression of this court’s intention that 4% to 5% will constitute the outer perimeters of a chancellor’s discretion in awarding attorneys’ fees from a common fund. We find no language in that opinion indicative of any such intention. As a matter of fact, we are not aware of any recent decision in which this court has passed upon allowances of attorneys’ fees where the percentage of the fund or recovery has been given any significance. We have enumerated pertinent factors on several occasions. See, e.g., Lytle v. Lytle, supra; Robinson v. Champion, 251 Ark. 817, 475 S.W. 2d 677; Equitable Life Assurance Society v. Rummell, 257 Ark. 90, 514 S.W. 2d 224.

It seems to us that the assigned chancellor, whose award was reinstated by the regular chancellor, took into consideration many of these factors. He made these findings:

1. There has been a substantial economic benefit bestowed upon the class;
2. There was personal and professional hardship incurred by the attorneys of record;
3. There was a vindication of an economic right;
4. The ligitation was novel;
5. The plaintiffs’ case was difficult and there was substantial time devoted to the case;
6. Counsel possessed extraordinary skill and competence.

John Harmon testified about his experience in dealing with utility rates and with class actions and anti-trust proceedings and his previous practice of public utility law generally. He anticipated a harmful effect upon his practice in North Little Rock because he detected an adverse attitude toward him by members of the city council when he appeared before them in connection with his practice after he became engaged in this litigation. He related the necessity for lengthy discovery processes and the protection of confidential sources of information gained from employees of the electric department, and classified the litigation as complex.

Expert testimony was given by Messrs. Walter Davidson and Dale Price of the Pulaski County Bar Association. Davidson told of his experience in public utility practice over a period of three to four years, and of the scarcity of attorneys engaged in that type of practice, which he called a “specialty-type” item. He considered a rate of $70 per hour in that work as a conservative figure designed to promote a continuing relationship with a client, but felt that a higher fee basis was appropriate in a case such as this, where the establishment of such a relationship was not a factor. In his opinion, considering the results and the fact that collecting any fee was dependent upon a favorable termination of the litigation, 25% of the recovery was reasonable. He considered the complexity of the case, the experience of the attorneys involved, the results accomplished, the urgency of the case, other business lost, the lack of a continuing client relationship and the contingency of the compensation as pertinent factors in fixing the amount of the fee.

Price considered the specialized nature of utility rate cases, the lack of a prospect of a continuing lawyer-client relationship, the urgency of the case, the contingency of the fee and the fact that the suit was against a political entity in arriving at his opinion that a fee of 20 to 25% of the recovery would be reasonable. He expressed the opinion that fees of $75 to $100 per hour, and “even upwards” were a fair hourly rate in the locality, and said that in fixing an hourly rate, the political factor, the potential necessity for discarding other business, and the urgency of the case were important factors in determining whether the hourly rate should be $75, $100, or even more.

In view of the record before us, we are unable to say that there was any abuse of discretion in the allowance of attorneys ’ fees in this case, which we should have to do in order to reverse or modify that award. An important factor in our consideration of the fee allowance in this case is the realization that inadequate compensation will cause attorneys who are competent to handle this type of litigation to shun it, or if they accept it, fail to devote sufficient time to adequately prepare or present the case. This is an appropriate consideration in matters of this sort. Old Republic Insurance Co. v. Alexander, 245 Ark. 1029, 436 S.W. 2d 829. The individual rate payer ordinarily cannot afford to employ counsel because attorneys’ fees and other expenses could be expected to exceed his prospective recovery. If attorneys do avoid employment such as that accepted by the attorneys in this case because they cannot expect to be adequately compensated, even if they are successful, there would be few cases where excessive charges would ever be refunded. The fact that no one who is the beneficiary of the recovery is complaining about the award is not without significance. The standing of appellants in this matter is not clear, even though the abstract of the record does not reveal that it was ever challenged in the trial court.

The trial court had considerable discretion in making fee allowances. We are unable to say that the fees allowed were indicative of any abuse of the discretion of the chancellors.

The decree is affirmed.

Hickman, J., not participating.

Special Justice A. D. McAllister, Jr., concurs in.part and dissents in part.

A. D. McAllister, Jr., Special Justice,

concurring in part, dissenting in part. On this second appeal in this case appellants claim that the allowance of attorney’s fees in the amount of $95,884.31 to three attorneys whose efforts in a taxpayers’ class action had established a common fund of $639,226.24 was improper and excessive. The first appeal is reported in Henry v. Powell, 262 Ark. 763, 561 S.W. 2d 296 (1978), wherein this court reversed an appeal from the regular chancellor’s order setting aside a special chancellor’s order (initially allowing the fee) for want of an appealable order. The opinion in Henry v. Powell, supra, was handed down on February 13,1978. Thereafter, the regular chancellor reinstated the special chancellor’s order approving payment of the fee.

Three attorneys of the Pulaski county bar, representing 12 named plaintiffs (5 of whom subsequently withdrew) on a contingent fee basis of 25% of any amounts recovered, filed a complaint for their clients and “all others similarly situated” for an accounting and refund of all moneys alleged to have been illegally exacted by the electric department of North Little Rock and for recovery of reasonable attorney’s fees.

This court has said that the one person in the best position to evaluate and make an award of attorney’s fees was the chancellor before whom the entire proceedings were conducted. Robinson v. Champion, 251 Ark. 817, 475 S.W. 2d 677 (1972). And that no one is more intimately acquainted with the proceedings, the character of the services performed, and the attorneys who took part in the litigation than the chancellor who tried the case. Marlin v. Marsh & Marsh, 189 Ark. 1157, 76 S.W. 2d 965 (1934).

Even though this court usually defers to the superior perspective of the trial judge for an assessment of the various factors enumerated in the majority opinion in any determination of reasonable attorney’s fees, we have not hesitated to reduce an allowance for attorney’s fees when, based upon the entire record, we cannot find adequate support for the allowance. Equitable Life Assurance Society of the United States v. Willie Runnell, 257 Ark. 90, 514 S.W. 2d 224 (1974). Since the chancellor who originally heard this case did not make the allowance of attorney’s fees, a review of the entire transcript of the trial court is in order.

The original complaint was filed on August 10,1976 and subsequently amended. No interrogatories, requests for admissions of facts, responses or objections thereto, or discovery depositions are shown in the record. A motion for preliminary hearing, answer, amended answer, a 55 page memorandum and pre-trial brief and motion for summary judgment were filed by the city. An 8-page brief was filed by one of the three attorneys. Although a summons was issued for appearance of the North Little Rock bookkeeper to testify on behalf of the plaintiffs at trial on November 12, 1976, there is no evidence in the record that the hearing was stenographically recorded.

On November 17, 1976, appropriately under the pleadings, the trial court appointed an attorney, Jerry D. Jackson, as a master in chancery “to examine the evidence, hold hearings, investigate the records ... or do any other acts necessary to determine what the extra charges were. . . and report to the court his findings in dollars and cents ...” The order instructed the master to study certain specified exhibits among others and authorized the master to hire an accountant if necessary. The master filed his 22 page report on December 28, 1976, and on December 30, 1976 Judge Hickman entered a final order finding that the master’s report was “accepted without objections by either party”. The order directed the city to refund $639,226.24 to the city’s electric customers on a pro-rata basis. The master’s fee of $1500.00 for 14.1 hours of work was approved, but plaintiffs request for attorney’s fees was denied.

As Judge Hickman became a member of this court on January 1,1977, the remaining proceedings in the trial court were conducted by Judge Bullion, elected to succeed Judge Hickman, and by Judge Taylor, the special chancellor.

In my opinion, the three attorneys should not be allowed a fee for their efforts to obtain or to enforce collection of their own fees. The record of the proceedings before the trial court reveals that the efforts of the master and the court itself may have well exceeded the “in court” efforts of the three attorneys leading to the establishment of the fund on December 30, 1976. The “out of court” efforts of the three attorneys leading to the establishment of the fund is not sufficiently documented.

Since the prayer of plaintiffs compliant was for the recovery of attorney ’ s fees from the city rather than from the common fund it is readily apparent why Judge Hickman concluded that there was no existing statutory authority to assess an attorney’s fee against the city.

John Harmon testified that the “first serious effort” to recover attorney’s fees in excess of 25% of the amount recovered for the 8 named plaintiffs came after March 18, 1977, the effective date of Act 822 of 1977 which authorized fees for the attorneys of record in taxpayer refund actions for monies illegally exacted by a county, city or town before distribution of the balance to the members of the class.

The order establishing the common fund is shown at pages 157-8 of the 395 page transcript. The remaining 237 pages reflect principally and almost exclusively the efforts of the three attorneys to obtain and enforce collection of their fees by execution and garnishment. These efforts include the two appeals to this court and the actions taken by a special master and the city to comply with Judge Bullion’s order entered March 9, 1977 which found that the city had withdrawn its previously filed petition for rehearing and review of Judge Hickman’s order of December 30, 1976 and appointed Price, Waterhouse & Co., certified public accountants, to calculate and oversee the refunds to the electric customers. By this order the court retained jurisdiction “for clarification pertaining to attorney’s fees due plaintiffs out of the fund.”

We are here considering the rights of 8 named plaintiffs, their 3 attorneys, and the rights of more than 32,400 unnamed plaintiffs who did not participate in the litigation and had no notice of any of the proceedings. Most importantly the proceedings involving thé allowance of attorney’s fees, which, would reduce the total refund payable to the unnamed plaintiffs by the amount of such allowance.

This court noted in Henry v. Powell, supra, that Judge Taylor awarded the attorney’s fee of $95,884.31 out of the common fund, at a hearing on April 1, 1977 which was not stenographically reported. The record does not reflect whether the unnamed plaintiff members had received reasonable notice of and an opportunity to be heard on the issue of allowance of attorney’s fees. The lack of such notice may well violate traditional standards of procedural due process, but due process is not in issue here.

On May 4, 1977, Judge Bullion entered an order approved by all counsel of record setting aside Judge Taylor’s order awarding attorney’s fees which was reversed by this court in Henry v. Powell, supra, for want of an appealable order.

After remand and on December 27,1978 Judge Bullion conducted an evidentiary hearing on the allowance of attorney’s fees without notice to the unnamed plaintiffs. The three attorneys and two expert witness attorneys, who had nothing to do with the litigation, all testified before Judge Bullion at the stenographically reported hearing.

The potential of a class action case for abuse in award of attorney’s fees out of a common fund was first recognized in Trustees v. Greenough, 105 U.S. 527 where the U.S. Supreme Court warned that court awarded attorney’s fees should be “made with moderation and a jealous regard to the rights of those who are interested in the fund.”

The unnamed plaintiffs, numbering over 32,400, had little or no opportunity to exercise any measure of control over the conduct of the litigation by the three attorneys or in the allowance of their attorney’s fees. Without this opportunity and little incentive (the individual refunds would have been less than $20.00 per customer) the unnamed plaintiffs could hardly be expected to register any complaints. The common fund itself once established, no longer belonged to the city so the city had little incentive to oppose any allowance of attorney’s fees out of the fund. In both the Love and Lytle cases, cited in the majority opinion, the awards of attorney’s fees were vigorously opposed in an adversary proceeding between two named parties both represented by their own attorneys.

Although most state courts, including our own, have considered few class action cases involving the allowance of attorney’s fees, the federal courts have struggled with the problem for many years.

An experienced and prominent group of judges and lawyers prepared for use in class action cases in the federal courts a Manual of Complex Litigation.

The Manual states that “few subjects associated with the class action device have generated as much critical commentary in recent years as the matter of attorney’s fees.” It urges strict compliance with exacting standards approved by the courts to insure that awards of attorney’s fees are not abused.

Although the standards for determining attorney’s fees in class actions enunciated by the federal courts are somewhat varied, many federal appellate courts are requiring the federal trial courts to hold evidentiary hearings and to award attorney’s fees only upon specific findings of facts based on proper standards rather than upon unsubstantiated discretion coupled with a recital of the various factors considered.

Illustrative of this trend is Lindy Brothers Builder, Inc. v. American Radiator & Standard Sanitary Corp., 487 F. 2d 161 (C. A. 3. 1973), (Lindy I), an antitrust class action case, in which the Third Circuit held that the district court’s “failure to hold an evidentiary hearing and its failure to follow proper standards in awarding fees to attorneys constituted an abuse of discretion”, and found that “the mere listing of four factors for consideration by the court makes meaningful review difficult and gives little guidance to attorneys and claimants.”

In City of Detroit v. Grinnell, 495 F. 2d 448 (C.A.2. 1974), also a class action case, the Second Circuit observed that the initial duty of the trial court was “to ascertain the number of hours which the attorney and his firm spent on the case,” the next step was “to place a value on that time . . . with a proper index being the hourly rate to which attorneys of like skill in the area would be typically entitled for a given type of work on the basis of an hourly rate of compensation.” Like the Lindy court, the Detroit court then considered several “less objective factors such as the risk of litigation, and concluded that an evidentiary hearing of the relevant facts on the issue of attorney’s fees was a necessity.” See also Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714 (C.A. 5, 1974) and Merola v. Atlantic Richfield Co., 493 F. 2d 292 at 297 (C.A. 3 1974).

Our own Eighth Circuit in Grunin v. International House of Pancakes, 513 F. 2d 114 (C.A 8, 1975) has approved and followed Detroit and the. Lindy four-step test in a class action case holding at page 128 of its opinion:

“The Lindy standards as interpreted in the City of Detroit and Merola provide the appropriate test for determining a discretionary fee award in a class action context.”

The Manual for Complex Litigation states that the standards imposed in the federal decisions “make it imperative that counsel be required to keep precise records of the hours spent in working on the case and of the specific tasks which were performed in the time recorded.” The Manual also states that the award of attorney’s fees must be based upon these records and not upon estimates and recommends that the trial courts order counsel at the beginning of the action to keep accurate time sheets describing precisely how much time was spent in each activity and whether the activity itself was of benefit toward resolution of the case.

In the recent case of In Re Anthracite Coal Antitrust Lit., 81 F.R.D. 499 (1979), after counsel for the class representatives had mailed notices to all customers of the defendants who might be members of the class, an evidentiary hearing was conducted on the petition for award of attorney’s fees and costs. The petitioning attorneys made the following information available at the hearing: a written analysis of the work performed by each attorney, paralegal and law clerk, by date, description of services and amount of time expended; a detailed listing of all expenses incurred, including the date of incurrence, type and amount of expense; a statement of the normal billing rate of each attorney; and a narrative description of the proceedings and the asserted impact of each attorney’s service upon the result achieved.

In Miller v. Mackey International, Inc., 70 F.R.D. 533 (1976), the court appointed an independent attorney as guardian ad litem to represent the interests of the class in connection with the proceedings for determination of the attorney’s fees. The court said:

“Because the interest of the class members is specifically adverse to the interest of their lawyers who seek an attorney’s fee to be awarded from the settlement fund, the class members must be protected. The attorney for the defendant has little concern for the manner in which the fund is divided. Consequently, the court appointed an experienced attorney as guardian ad litem for members of the class . . . this procedure both achieves protection for members of the class and enables the trial judge to remain in an impartial position.”

See also: Haas v. Pittsburgh Nat. Bank, 77 F.R.D. 382 (1977).

The following factors militate against my affirmance of the full amount of the award of attorney’s fees in this case:

1. The failure of any of the attorneys to record their time and furnish to the court a breakdown of who spent time, both in and out of court, and in what endeavor so as to avoid duplication of effort. See Colson v. Hilton Hotels Corp., 59 F.R.D. 324 (N.D. Ill. 1972).

2. The failure of one attorney to supply the court with any information relating to his standard hourly rate. See Grunin v. International House of Pancakes, supra.

3. The two judges who presided over the hearings which resulted in the allowance of attorney’s fees had not presided over the substantive proceedings which culminated in the establishment of the common fund. See White v. Auerbach, 500 F. 2d 822 (C.A. 2, 1974).

4. Much of the work leading to the establishment of the common fund was necessarily performed by a master and the court without objection of any of the parties. See Alpine Pharmacy, Inc. v. Chas. Pfizer & Co., Inc., 481 F. 2d 1045 (C.A. 2, 1973).

5. Supervision of distribution of the refunds was performed by a second master appointed by the court without objection of any of the parties. See Alpine Pharmacy, Inc. v. Chas. Pfizer & Co., Inc., supra.

6. That no notice of the evidentiary hearing on the allowance of attorney’s fees was given to the unnamed plaintiff members of the class. See In Re Anthracite Coal Antitrust Lit., supra.

7. The unnamed plaintiff members of the class were not represented by counsel i.e. a guardian ad litem at the two hearings on the award of attorney’s fees. See Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968).

8. Both hearings on the issue of attorney’s fees resulted in an identical award of 15% of the common fund suggestive of an arbitrary discount of the 25% contingent fee contract. See Illinois v. Harper & Row Publishers, Inc., 55 F.R.D. 221 (N.D. Ill. 1972); Manual For Complex Litigation, reprinted in Vol. 1, Part 2, Moore’s Federal Practice, § 1.47 (2d Ed. 1974).

9. The transcript of the trial court record shows that much, if not most, of the “in court” attorney’s time was spent to obtain and enforce collection of their own fees. See Lindy Bros. Builders v. American Radiator and Sanitary Corp., 540 F. 2d 102 (3d Cir. 1976) (Lindy II).

10. The use of three attorneys without appropriate documentation to support the need for three separate attorneys. See The Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S.W. 720 (1914).

The three attorneys testified that altogether they spent 47 hours a week for 16 weeks on the case i.e. an aggregate of 752 hours. On the award of $95,884.31, their hourly rate would have been $127.50. The qualifications and experience of Walter Davidson, one of the two expert witnesses, was the most nearly comparable to that of John Harmon. Mr. Harmon did not testify as to his usual and customary hourly rate but Mr. Davidson testified that his usual and customary hourly rate was $70.00. The expert witnesses had no knowledge of the time spent by the three attorneys. Neither of the expert witnesses testified that they had handled any utility rate class action cases.

Upon consideration of the transcript of the entire trial court record in the light of the affirmative factors (enumerated in the majority opinion) and the negative factors (enumerated in this opinion), I would award a reasonable attorney’ s fee to counsel for the class in the amount of $52,640.00, for their services rendered, both in and out of court, which were concluded with the establishment of the fund on December 30, 1976. I would not award attorney’s fee for the efforts exerted by the three attorneys after December 30, 1976 to obtain and enforce collection of their own fees.

As modified by reduction of the allowance of attorney’s fees from $95,884.31 to $52,640.00 (752 estimated hours times $70.00 per hour), I would affirm.

Mr. Justice George Rose Smith joins in this opinion.

       The regular chancellor was Judge Hickman, not Judge Bullion as reported in Henry v. Powell, supra. Judge Taylor was the special chancellor assigned by order of the chief justice of this court to hold courtfor the week of March 28 through April 1, 1977 in the absence of Judge Bullion. Judge Hickman properly disqualified himself in Henry v. Powell, as well as in this case.

      Manual for Complex Litigation, § 1.47, reprinted in Volume 1, Part 2, Moore’s Federal Practice, pages 77-85 (2d Ed. 1948).

      See 7A C. Wright and A. Miller, Federal Practice and Procedure § 1803 (1976 Supp.); Lawyers and Involuntary Clients In Public Interest Litigation, 88 Harv. L. Rev. 849 (1975); Attorney’s Fees in Individual and Class Action Antitrust Litigation, 60 Cal. L. Rev. 1656 (1972); Handler; The Shift from Substantive to Procedural Innovations in Antitrust Suits; The Twenty-Third Annual Antitrust Review, 71 Colum. L. Rev. 1, 9-10 (1971).

      See Volume 1, Part 2, Moore’s Federal Practice, at page 1.50.


text:
    STATE of Arkansas v. John GLENN and David HAMILTON
    CR 79-191
    Opinion delivered January 14, 1980
    (In Banc)

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for petitioner.

      William R. Simpson, Jr., Chief Deputy Public Defender, and Alan Nussbaum, for respondents.
   George Rose Smith, Justice.

Early in the morning of February 4, 1978, a homicide occurred at the home of the respondents, Glenn and Hamilton, in Little Rock. The fatal shooting arose from an argument between the respondents on the one side and two visitors, Eichehbaum and Parker, on the other, about the sale of marihuana. The police investigated the homicide, and later in the month Parker was charged with the murder of Eichenbaum. Both the respondents testified as witnesses for the State at a preliminary hearing in the murder case, held in the municipal court on February 22.

On May 30 the two respondents were jointly charged in the present case with possession of marihuana on the night of the homicide, with intent to deliver. Both defendants filed motions to suppress evidence of certain marihuana seized during the police investigation. The case was tried without a jury on March 19,1979. The court first heard the evidence on the motions to suppress and tentatively granted the motions. The hearing then went on to the merits of the case. After both sides had rested the judge indicated that he would also exclude the State’s remaining evidence upon the marihuana charge; that is, two statements taken from Hamilton by the police and the testimony of both defendants at the preliminary hearing on the homicide charge against Parker. A month later, after the parties had submitted briefs on the admissibility of the evidence, the judge adhered to his position and announced that the charges would be dismissed for insufficiency of proof. The judge, however, offered to permit the prosecution to take an interlocutory appeal on the evidentiary questions, adding that if the case were reversed it would have to be tried all over again, as the judge might have forgotten the testimony by then. The deputy prosecutor replied that he would take the interlocutory appeal. The court took the case under advisement pending the outcome of the appeal.

An interlocutory appeal, presenting three questions about the admissibility of evidence, was taken to the Court of Appeals. That tribunal, in an unpublished opinion delivered on September 19, reversed the trial court on two of the three points and remanded the cause for further proceedings. We granted certiorari in the belief that the case presented a question of statutory interpretation with respect to Uniform Evidence Rule 804, Ark. Stat. Ann. § 28-1001 (Repl. 1979).

We do not reach the merits of the State’s contentions, for it is too late for appellate jurisdiction to be invoked by means of an interlocutory appeal. Of course, the want of an appealable order is a jurisdictional matter that this court will raise itself.

The Rules of Criminal Procedure (1976) permit an interlocutory appeal by the State only with respect to a pretrial order suppressing evidence. Rules 16.2 and 36.10. At that point jeopardy has not attached. The rules are intended to permit the State to obtain a review of a ruling upon the admissibility of evidence essential to the prosecution’s case. (As originally drafted, Rule 36.1 similarly allowed a defendant to enter a conditional plea of guilty and take an interlocutory appeal after the denial of a motion to suppress evidence. That provision, however, was deleted before Rule 36.1 was approved. See the third paragraph [which should also have been deleted] of the Commentary following Rule 36.1.)

Jeopardy attaches when the jury is finally sworn to try the case or, in a trial to the court, when the taking of evidence begins. Jones v. State, 230 Ark. 18, 320 S.W. 2d 645 (1959) (jury trial); Annotation, 49 A.L.R. 3d 1039 (1973) (nonjury trial). Thus the State might have taken an interlocutory appeal after a pretrial hearing upon the motions to suppress the seized drugs, but that procedure was no longer available when the trial proceeded to the merits. A criminal trial cannot be suspended for weeks or months to allow an appeal from an interlocutory ruling upon the admissibility of evidence. Nor can this case be tried all over again, as the trial judge suggested, owing to the prohibition against double jeopardy.

It follows that the trial court’s rulings that the State’s evidence was inadmissible must stand, whether correct or not. There being no other substantial evidence to sustain the charges, the cause must be remanded for the entry of a final judgment for both defendants.

Reversed.


author: Frank Holt, Justice.

text:
    Truman BOLDEN v. STATE of Arkansas
    CR 79-134
    593 S.W. 2d 156
    Opinion delivered January 14, 1980
    (In Banc)
    [Rehearing denied February 19, 1980.]

      Anthony Wayne Emmons, Dyersburg, Tenn., for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted of first degree battery, a class B felony. We reversed and remanded. Bolden v. State, 262 Ark. 718, 561 S.W. 2d 881 (1978). On retrial he was again found guilty of first degree battery, receiving a sentence of ten years’ imprisonment. He brings this appeal which was certified to this court from the Court of Appeals pursuant to Rule 29, § (1) (J), Rules of the Arkansas Supreme Court and Court of Appeals.

When we review the evidence in the light most favorable to the appellee, as we must do on appeal, we agree with appellant there is no substantial evidence to support his conviction for first degree battery. There is no evidence from which the jury could have found, without resorting to surmise and conjecture, that appellant had committed first degree battery under any of the provisions of Ark. Stat. Ann. § 41-1601 (Repl. 1977), which provides in pertinent part:

(1) a person commits battery in the first degree if:
(a) with the purpose of causing serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon; or
(b) with the purpose of seriously and permanently disfiguring another person, or of destroying, amputating or permanently disabling a member or organ of his body, he causes such an injury to any person; or
(c) he causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life; or . . .

To sustain a conviction of first degree battery, “life endangering conduct” must generally be involved; there must be a severe injury in conjunction with a wanton or purposeful culpable mental state; and each recited subsection of § 41-1601, supra, “describes conduct that would produce murder liability if death resulted.” Commentary to § 41-1603. Clearly, an element of first degree battery is the intent to inflict serious physical injury. Golden v. State, 265 Ark. 99, 576 S.W. 2d 955 (1979).

Here a policeman testified that he was writing a citation, charging appellant with a traffic offense when he was unexpectedly struck in the back of the head. He was felled and dazed by the blow. A struggle ensued. According to the officer, the appellant and his brother kicked and beat him about his head and chest. The officer suffered a broken jaw and ribs. The officer had not produced (drawn) any weapon when he received the blow; his gun holster was snapped when he received the blow; and he had no idea what type of instrument, if any, caused the injury. His nightstick was in the front part of the car. The appellant was in the back seat of the patrol car, within reach of the nightstick, immediately prior to his receiving the blow. The officer did not know what caused the injury. The physician who examined the officer shortly after the incident testified that he had not observed any contusion on the officer’s head, and there was no physical evidence of a severe blow to the back of the head. With regard to his jaw injury, the officer testified that he did not know what had caused the injury, although, as previously indicated, appellant and his brother kicked and beat him about his head and chest. Although the officer testified that the appellant got possession of his gun during the struggle, pointed it at him, and threatened to kill him, he did not testify that the appellant had struck him with the gun, nightstick or any weapon. The physician testified that the injury could have resulted from a blow from someone’s fist. The appellant admitted only that it was possible he hit the officer with his elbow during the scuffle.

This recited evidence would only justify a conviction of second degree battery pursuant to § 41-1602 which provides in pertinent part:

(1) A person commits battery in the second degree if: (a) with the purpose of causing physical injury to another person; . . . or . . .
(c) with the purpose of preventing a law enforcement officer or fireman from acting in the line of duty, he causes physical injury to any person . . .

Appellant’s other assignments for reversal have no merit since they are unsupported by convincing argument or citation of authority. Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606 (1977).

Since the evidence is insufficient to support a conviction of first degree battery, the judgment is reversed and the cause remanded.

Hickman, J., concurs.

Stroud & Mays, JJ., not participating.


text:
    William Earl DAVIS v. STATE of Arkansas
    CR 79-160
    592 S.W. 2d 118
    Opinion delivered January 14, 1980
    (In Banc)
    [Rehearing denied February 4, 1980.]

      Ray & Donovan, for appellant.

      Steve Clark, Atty. Gen., by '.Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was charged with capital felony murder. Ark. Stat. Ann. § 41-1501 (a) (Repl. 1977). Following plea negotiations, he entered a plea of guilty to first degree murder (Ark. Stat. Ann. § 41-1502 [Repl. 1977]) and was sentenced to 25 years’ imprisonment. Shortly thereafter, appellant petitioned for postconviction relief pursuant to Ark. Stat. Ann. Vol. 4A, Rules of Crim. Proc., Rule 37 (Repl. 1977). After an evidentiary hearing, the court denied the petition and hence this appeal by present appointed counsel.

We first consider appellant’s contention that the court erred in finding that he had not been denied effective assistance of counsel. He primarily argues that his attorney should not have allowed him to plead guilty to a lesser offense because there was insufficient evidence to convict him of capital murder, the crime with which he was charged in the information. The decision of counsel to approve a plea of guilty to a lesser offense is ajudgment question. Carney v. State, 250 Ark. 205, 464 S.W. 2d 612 (1971). Appellant must prove by a preponderance of the evidence that his attorney has by his acts or omissions made the proceedings “a farce and a mockery of justice,” or that appellant’s representation by counsel was “so patently lacking in competence or adequacy” that it is the court’s duty to correct it. Sheppard v. State, 255 Ark. 40, 498 S.W. 2d 668 (1973). The burden was on the appellant to overcome the presumption that his attorney was competent. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657 (1973).

Appellant never accuses his attorney of forcing him to waive his right to a jury trial, or of even advising him to plead guilty. He admits that his attorney did an “admirable job” during pretrial proceedings. Appellant’s then appointed attorney testified at length at the Rule 37 hearing. During his investigation .of the case, he made in excess of 20 trips between West Helena and Marianna to discuss the case with the appellant and other persons acquainted with the case. He estimated that he had spent between 150 and 400 hours in the preparation of the case. He filed numerous motions, including a motion for change of venue, motion to quash petit jury panel, motion for continuance, motion for bill of particulars and discovery, and a petition for appellant’s commitment to the State Hospital for psychiatric examination. He also discussed the case with attorneys for the codefendants in the murder charge. They indicated that their clients would testify against the appellant if the case went to trial. The court had granted the state’s motion to compel attendance of two out-of-state witnesses whose testimony would link the appellant to the murder weapon. The attorney also testified that he was satisfied that there was a factual basis for the appellant’s guilty plea; that he read and explained the plea statement to the appellant; and that in his opinion the appellant was well aware of what was happening. He stated that on the day the plea was entered he told the appellant that he did not have to accept the negotiated agreement and that he could secure a new attorney and a jury trial if he so desired. We hold that the trial court was correct in finding the appellant was not denied effective assistance of counsel.

Appellant also contends that the court erred in accepting his guilty plea without establishing that the plea had a basis in fact as required by Rules of Crim. Proc., rule 24.6. The factual basis of a guilty plea, if not sufficiently determined during the plea proceedings, may be established at the Rule 37 post conviction hearing. Deason v. State, 263 Ark. 56, 562 S.W. 2d 79 (1978). Here the court found there was a sufficient factual basis for appellant’s plea.

Written statements by the appellant and his codefendants were introduced into evidence at the hearing. In his statement, appellant admitted that he was at the victim’s house on the night of the murder and that he intended to rob the victim. The codefendants, in their statements, placed the appellant at the scene of the murder; stated that the appellant showed them money with “blood on it”; and that appellant told them that he shot the victim. Although the codefendants testified that their previous statements were false and had been coerced, the state offered evidence to the contrary. We agree there was a factual basis for the guilty plea.

Appellant also contends that the court erred in not permitting him to introduce evidence, or proffer proof, of threats, promises of leniency and “bond denial” which caused him to enter his guilty plea. Also that the unsanitary living conditions of the local jail and the denial of medication to him made his confession and plea involuntary. The thrust of his argument is that he agreed to confess to a crime he did not commit solely to escape from the miserable living conditions at the local jail. Even if we consider the issues sufficiently alleged or raised at the evidentiary hearing, appellant’s signed plea statement and evidence presented demonstrates that the plea was voluntary. When the plea was entered, appellant was represented by competent counsel. Upon inquiry by the court, appellant stated that he was entering the plea freely and voluntarily and on the advice of counsel, and it was not the result of threats and violence. He was fully informed as to the facts surrounding the charges and the possible sentence upon conviction of felony murder. Also he was satisfied with the services rendered by his attorney and that he had no complaints about his representation. The court instructed appellant that it was not bound by the prosecutor’s recommendations. The record reflects that appellant was given every opportunity to raise any possible defense he had to the charges. Having failed to do so, he is now precluded from collaterally attacking his sentence. Robertson v. State, 252 Ark. 333, 478 S.W. 2d 878 (1972); and Horn v. State, 254 Ark. 651, 495 S.W. 2d 152 (1972).

Appellant’s argument that the court intended that he be required to serve 1/3 of his 25 year sentence, less any credit for good time served, is an issue raised for the first time on appeal. Therefore, we do not consider it. Davis v. State, 253 Ark. 484, 486 S.W. 2d 904 (1972).

After a full review of the record, we hold there was no violation of appellant’s constitutional rights.

Affirmed.

Stroud & Mays JJ, not participating.