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King v. State

Court of Appeals of Arkansas, Division IV

December 12, 2018

MARKEVIOUS KING APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [NO. 60CR-10-3116] HONORABLE HERBERT T. WRIGHT, JUDGE

          John Wesley Hall and Sarah M. Pourhosseini, for appellant.

          Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't Att'y Gen., for appellee.

          BART F. VIRDEN, JUDGE

         This is an appeal from an order of the Pulaski County Circuit Court denying appellant Markevious King's petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure. King raised to the trial court one ground for relief based on allegations of ineffective assistance of counsel: that counsel failed to show a police dash-cam video at the suppression hearing that demonstrated that the stop leading to his search and arrest was without a legal basis. The trial court denied relief without conducting a hearing. King raises his original allegation of ineffective assistance of counsel, and he raises two additional points on appeal: (1) the trial court erred in its determination that when a petitioner has pleaded guilty, the sole issue is whether the plea was made intelligently and voluntarily; and (2) the trial court erred by denying King's request for an evidentiary hearing on his Rule 37 petition and by failing to make sufficient findings of fact. We agree that the trial court erred in both determinations, and we reverse and remand.

         I. Relevant Facts

         On September 9, 2010, King was charged in the Pulaski County Circuit Court with simultaneous possession of drugs and firearms, possession with intent to deliver cocaine, possession of firearms by certain persons, possession of drug paraphernalia, resisting arrest, and fleeing. He was charged as a small-habitual offender.

         On October 6, 2010, King filed a motion to suppress. In the motion, King asserted that the Little Rock Police Department ("LRPD") illegally detained him, violating his Fourth and Fourteenth Amendment rights. King argued that the search that led to his arrest was conducted without his consent and that there was no probable cause to search; he then moved to suppress the introduction of evidence that was allegedly illegally obtained. On May 25, 2011, the trial court held a suppression hearing, and Officer Eric Temple testified that on July 15, 2010, he performed a traffic stop of the vehicle in which King was a passenger because he observed that the car's taillight was broken. Officer Temple testified that as he approached the car he smelled marijuana, and he observed King open the car door and flee on foot. Officer Temple explained that as King exited the car and stood up, a gun fell from King's waistband. Officer Temple testified that he eventually caught up with King and took him into custody. Officer Paris Simmons, who was riding in the patrol car with Officer Temple, also stated that they conducted the traffic stop based on their observation of a broken taillight. Officer Wade Neihouse testified that he arrived at the scene after the stop occurred, that he participated in searching King, and that he found a set of electronic scales in the right-front pocket of King's pants. Officer Neihouse recalled that he observed Officer Robbie Kelley retrieve several clear bags of off-white powder and rocks that he believed to be cocaine. Officer Kelley confirmed that she arrived after the stop occurred and that she also assisted in searching King.

         The trial court denied the motion to suppress. Immediately thereafter, the State informed the court that, "[f]or the record, there was video that was taken of the initial stop from Officer Temple's MVR. That has been copied and provided to Defense counsel. Defense counsel did not state whether he had viewed the video or if he had shown it to his client."[1]

         On April 25, 2016, King filed a new motion to suppress in which he asserted that the police officers conducted a warrantless search and that evidence was seized during this illegal search in violation of his Fourth and Fourteenth Amendment rights.

         On December 15, 2016, King entered a plea statement in which he agreed that he understood the minimum and maximum sentences for the charged offenses and that pleading guilty meant that he had waived any right to a jury trial or to an appeal. King acknowledged that he understood the charges, that he had discussed the case with his attorney, and that he was satisfied with his attorney's representation. King agreed that if his case went to trial, the State could meet its burden of proving his guilt beyond a reasonable doubt.

         On January 3, 2017, the trial court held a sentencing hearing at which King requested to withdraw his guilty plea because counsel had misadvised him on parole eligibility. King's request was denied, and the sentencing hearing was continued to the following Tuesday so that newly appointed counsel could "deal with this." Counsel stated, "I've talked to Mr. King before I talked to Mr. Luppen. I have a very good understanding of it. I've read the discovery, I've seen the video, but I don't want to pull the trigger on something too quickly."

         King was sentenced to ten years' imprisonment in the Arkansas Department of Correction. On April 19, 2017, King filed a petition for relief from conviction under Arkansas Rule of Criminal Procedure 37.1. In his petition, King alleged that his counsel was ineffective based on his failure to pursue a valid motion to suppress evidence. Specifically, King contended that at the suppression hearing, counsel did not play the police patrol vehicle's dash-cam video of the traffic stop that led to King's search and arrest. King contended that Officers Temple and Simmons testified at the suppression hearing that the broken taillight was the sole reason for performing the traffic stop of the car in which King was a passenger; however, the dash-cam video shows that the taillights were in working order and that there was no legal basis for the stop. King asserted that his counsel's assistance was constitutionally inadequate, and he was prejudiced by his counsel's ineffectiveness because the evidence would have likely been suppressed had the video been shown at the hearing. King asserted that he would not have pleaded guilty but for his counsel's error, and he requested a hearing on the petition.

         The trial court denied the request for an evidentiary hearing and denied King's Rule 37 motion on the pleadings. In the order, the trial court found that King entered a negotiated plea, and the sole issue when a guilty plea has been entered is whether the plea was intelligently and voluntarily entered. The trial court found that King admitted in open court that he was guilty, that he understood the charges, that he had not been coerced, that he had talked with his ...


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