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White v. State

Supreme Court of Arkansas

April 9, 2015

HERMAN L. WHITE, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

APPEAL FROM THE HEMPSTEAD COUNTY CIRCUIT COURT. NO. CR-12-98-2. HONORABLE DUNCAN CULPEPPER, JUDGE.

Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellant.

Dustin McDaniel, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

OPINION

Page 286

ROBIN F. WYNNE, Associate Justice.

Herman L. White pled guilty to first-degree battery of a law enforcement officer acting in the line of duty and possession of a firearm by certain persons. He now appeals from the Hempstead County Circuit Court's order denying his petition for writ of error coram nobis. We affirm.

Page 287

The instant offenses occurred on March 23, 2012, when Arkansas State Police Corporal Pete Penney initiated a traffic stop of the vehicle White was driving. White cooperated during field-sobriety testing, but he resisted when Corporal Penney attempted to place him under arrest for driving while intoxicated. White fired a .357 Magnum revolver at Corporal Penney, and Penney's body armor absorbed at least one round at close range. Penney returned fire, and White was hit. White was on probation at the time these events occurred.

During the pendency of the case, two psychological evaluations were performed on White: one at the Arkansas State Hospital on July 3, 2012, and one at the request of the defense on August 6, 2013. On November 18, 2013, White entered a negotiated plea of guilty to charges of first-degree battery of a law enforcement officer acting in the line of duty (a Class Y felony) and possession of a firearm by certain persons (a Class B felony), for which he was sentenced as a habitual offender with four or more prior felony convictions. White was facing a sentence of not less than ten and not more than life imprisonment for the Class Y felony; the State recommended sixty years' imprisonment. White was sentenced to sixty and forty years' imprisonment, respectively, to be served concurrently. He did not file a petition pursuant to Arkansas Rule of Criminal Procedure 37.1.

On March 20, 2014, White filed a petition for writ of error coram nobis in the Hempstead County Circuit Court.[1] Attached to the petition was a time computation card from the Arkansas Department of Correction indicating that White was required to serve one hundred percent of his sixty-year sentence for first-degree battery. White alleged that he was " adamant about wanting to go to trial" and that he " only agreed to plea after undersigned counsel advised him that he would be eligible for parole. Undersigned counsel made no guarantees about whether he would be paroled, but, undersigned counsel advised Mr. White that he would be paroled." White went on to allege in the petition that he was denied the right to effective assistance of counsel, causing him to accept a plea that was " not knowingly entered upon advice of counsel," and to acknowledge that his recourse was the filing of a petition under Arkansas Rule of Criminal Procedure 37. Since the time for filing a Rule 37 petition had expired, White stated that he was left with no other remedy than to seek to have the judgment set aside with a petition for writ of error coram nobis. He stated:

In the instant case, given Mr. White's education and mental capacity, he was easily coerced into pleading guilty. Prior to the plea, Mr. White was allowed to speak with his sisters while undersigned counsel was present. Mr. White's sisters explained the same advice that led him to enter into this plea.

White asked the circuit court to set aside the judgment and grant him a new trial. The State responded to the petition, and the circuit court entered an order denying it and citing a colloquy at the plea hearing that indicated that White understood that the Arkansas Department of Correction would determine his parole eligibility, regardless of what his attorney or the prosecutor believed. The circuit court found that White had not been denied effective assistance of counsel. White filed a timely

Page 288

notice of appeal from the order denying his petition for writ of ...


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