Beshears v. State

Albert BESHEARS v. STATE of Arkansas

CR 96-738                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered July 14, 1997


1.   Criminal procedure -- postconviction relief -- written findings of fact and
     conclusions of law mandatory -- reversed and remanded. -- The supreme
     court could not reach the merits of appellant's arguments
     concerning trial counsel's alleged conflict of interest and
     failure to file a recusal motion because the trial court did
     not enter written findings of fact and conclusions of law as
     required by A.R.Cr.P. Rule 37.3; the supreme court has held
     without exception that this rule is mandatory and requires
     written findings; therefore, the court reversed and remanded
     the case to the trial court for written findings of fact and
     conclusions of law on appellant's claims for postconviction
     relief.

2.   Judges -- disqualification -- discretionary decision. -- Article 7,
     section 20, of the Arkansas Constitution and Canon 3(c) of the
     Arkansas Code of Judicial Conduct provide that judges must
     refrain from presiding over cases in which they might be
     interested and avoid all appearances of bias; a trial judge's
     decision not to recuse from a case is a discretionary one and
     will not be reversed on appeal absent an abuse of that
     discretion; to decide whether there has been an abuse of
     discretion, the appellate court reviews the record to
     determine if prejudice or bias was exhibited.
3.   Judges -- trial judge did not abuse discretion in denying motion to
     recuse. -- Where there was no exhibition of bias or prejudice
     by the trial judge during appellant's Rule 37 proceeding, the
     supreme court concluded that the trial judge did not abuse his
     discretion in denying appellant's motion to recuse.


     Appeal from Jackson Circuit Court; Harold Erwin, Judge;
reversed and remanded.
     Dale E. Adams, for appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.

     Per Curiam. 
     The appellant, Albert Beshears, entered a conditional plea of
guilty to possession of a controlled substance with intent to
deliver.  He was sentenced to forty years in prison.  In the direct
appeal, we affirmed the Trial Court's denial of Beshears's motion
to suppress.  Beshears v. State, 320 Ark. 573, 898 S.W.2d 49
(1995).  Beshears subsequently filed a petition for postconviction
relief pursuant to A.R.Cr.P. Rule 37.  
     In the petition, Beshears alleged that his counsel was
ineffective because he misled Beshears about the existence of an
offer of a negotiated plea; because he failed to file a motion
asking the trial judge to recuse; and because he represented a
conflicting interest that adversely affected the defense.  Beshears
also alleged that his counsel was ineffective for participating,
without his clients' permission, in the division of monies seized
by forfeiture.  
     In addition to his claims for relief under A.R.Cr.P. Rule 37,
Beshears filed a motion asserting that the trial judge should
recuse from the postconviction proceeding.  In the following order,
the Trial Court denied the motion to recuse and Beshears's request
for postconviction relief:

          Following a hearing held on this day, 21 March 1996,
     after considering the petitions, the testimony of the
     witnesses and the arguments of counsel, makes the following
     orders:

          1.  The motion for recusal is hereby denied; and
          2.  The request for relief pursuant to Rule 37 is also
               denied.

Beshears now appeals that order.  We reverse and remand because the
order does not contain written findings of fact and conclusions of
law as required by A.R.Cr.P. Rule 37.3(c).
     On appeal, Beshears contends that the Trial Court erred in
denying relief on his claim that his counsel was ineffective
because he represented a conflicting interest at the same time he
represented Beshears.  Specifically, he argues that his attorney
also represented his brother, Eddie, on an unrelated charge; and
that during that representation, Eddie made a statement that
exculpated Beshears.  Beshears contends that his attorney's choice
not to use this statement on his client's behalf made his guilty
plea involuntary and unintelligent.  Beshears also makes a two-part
argument concerning the recusal of the trial judge.  He contends
that the trial judge erred in denying his motion to recuse from the
postconviction proceeding; and that it was error to deny relief on
his claim that his counsel was ineffective for failing to file a
motion to recuse prior to Beshears's conviction.
     We cannot reach the merits of the arguments concerning the
alleged conflict of interest and trial counsel's failure to file a
motion to recuse because the Trial Court did not enter written
findings of fact and conclusions of law as required by A.R.Cr.P.
Rule 37.3.  We have held without exception that this rule is
mandatory and requires written findings.  Williams v. State, 272
Ark. 98, 612 S.W.2d 115 (1981).  Therefore, we reverse an remand
the case to the Trial Court for written findings of fact and
conclusions of law on Beshears's claims for postconviction relief.
     We can, however, reach the merits of the argument concerning
the Trial Court's denial of the motion to recuse from the
postconviction proceeding.  Beshears argues that the trial judge
should have recused from considering his Rule 37 petition because
the trial judge, before he assumed the bench, prosecuted him on an
unrelated matter ten years prior to the filing of the charges on
which he is presently incarcerated.  He also argues that the trial
judge gained additional knowledge about Beshears when he
represented him on a civil matter, and that the judge played a role
in Beshears's return from the Act 309 program in Lawrence County. 
Beshears contends that these circumstances warranted the trial
judge's recusal in order to avoid the appearance of impropriety. 
The State argues that the Trial Court did not abuse its discretion
in denying the motion to recuse.  We agree.
     Article 7, Section 20 of the Arkansas Constitution and Canon
3(c) of the Arkansas Code of Judicial Conduct provide that judges
must refrain from presiding over cases in which they might be
interested and avoid all appearances of bias.  Matthews v. State,
313 Ark. 327, 854 S.W.2d 562 (1994).  A trial judge's decision not
to recuse from a case is a discretionary one and will not be
reversed on appeal absent an abuse of that discretion.  Bryant v.
State, 323 Ark. 130, 913 S.W.2d 257, (1996).  To decide whether
there has been an abuse of discretion, we review the record to
determine if prejudice or bias was exhibited.  Reel v. State, 318
Ark. 565, 886 S.W.2d 615 (1994).    
     Beshears has not pointed to, nor can we find, any exhibition
of bias or prejudice by the trial judge during the Rule 37
proceeding.  Therefore, the trial judge did not abuse his
discretion in denying the motion to recuse.
     Reversed and remanded.
     Glaze, J. dissents.  

                 Tom Glaze, Justice, dissenting.



     Returning this case for the trial court to place its findings
in an order is a total waste of judicial time.  In rendering its
decision in this matter, the trial court made its rulings and
findings from the bench, and those findings were reported and are
now found in the record before us.  This court returns this case to
the trial court and directs it to take the findings it made earlier
(presently set out in the written record), incorporate those
findings in an order, and return that order for this court to make
a decision.  How requiring the trial court to perform this useless
function is going to help this court decide appellant's case
escapes me. 
     I would affirm.