¶1dissenting. 1 am compelled to dissent from the holding of the majority in affirming the trial court in denying a hearing on appellant’s fourth amendment to his petition, which was filed pursuant to an order of this Court.
¶2On November 28, 1977, in McGee v. State, 262 Ark. 473, 557 S.W. 2d 885, we said:
“. . . Rule 24.5 (1976), which provides:
The Court shall not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. The court shall determine whether the tendered plea is the result of a plea agreement. If it is, the court shall require that the agreement be stated.
¶3Clearly, this rule is mandatory.
“. . . Rule 25.3(c) provides that if a plea agreement exists in which the trial court has not concurred, then the court ‘shall advise the defendant in open court at the time the agreement is stated that:
(1) the agreement is not binding on the court;
(ii) if the defendant pleads guilty or nolo contendere the disposition may be different from that contemplated by the agreement.
Without the trial court’s advising the appellant as to these requirements upon his guilty pleas, there is no assurance that his guilty pleas were intelligently and voluntarily made. In these circumstances it might very well be that the accused pleaded guilty to the attempted robbery charge under a misunderstanding of the law and his rights.....”
¶4On May 10, 1976, in Cusick v. State, 259 Ark. 720, 536 S.W. 2d 119, we also made the following observation:
“In Byler, we pointed out that the ‘Standards Relating to Pleas of Guilty’ (1968) promulgated by the American Bar Association cautioned that a court should not accept a plea of guilty without first addressing the defendant personally and, after determining that he understands the nature of the charge, informing him that his plea of guilty or nolo contendere was a waiver of his right to trial by jury and of the maximum possible sentence on the charge. We held in Byler that a simple affirmative answer in open court to inquiries as to whether the defendant understood the elements of the charge and his waiving jury trial by entering a plea of guilty was not sufficient to meet Boykin requirements, at least when no statement or explanation of the minimum or maximum penalty had been made.
“. . . It is true that the certificate of the attorney appointed to represent the defendant contains a statement that appellant understood all of that ‘paper’ and the meaning and effect of his plea of nolo contendere and that defendant had been advised that the information correctly stated the charges and that the judge would find him guilty upon a plea of nolo contendere. The record discloses that the trial judge did state the nature of the charge and ascertained from the defendant that he understood. There is nothing whatever to indicate that appellant knew the range of possible punishment.”
¶5But today, the majority, in the face of the above pronouncements hold:
“There is no constitutional requirement that the trial judge make the explanation required in Boykin.”
¶6In support of this pronouncement, the Court cites United States v. Pricepaul, 540 F. 2d 417 and Todd v. Lockhart, 490 F. 2d 626. However, a careful and open minded reading of these cases readily leads one to the inescapable conclusion that the majority’s position is, indeed, untenable. Moreover, not only is the majority’s posture untenable, but opens the door to uncertainty, on the part of the bar and bench alike throughout the state as to the actual status of the rule of law involving the issues before us. This, indeed, is against the grain of the purpose and scope of the highest tribunal in the State whose prime responsibility is to clarify, make plain and give a degree of permanence or stability to the rule of law. Instability in the law not only culminates in confusion, but creates the likelihood of the deprivation of fundamental and basic rights. In Boykin, supra, the United States Supreme Court stated:
“. . . In Carnley v. Cochran, 369 U.S. 506, 516, we dealt with a problem of waiver of the right to counsel, a Sixth Amendment right. We held: ‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.’
“We think that the same standard must be applied to determining whether a guilty plea is voluntarily made. For, as we have said, a plea of guilty is more than an admission of conduct; it is a conviction. Ignorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality. The question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards ....
“Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. . . . Second, is the right to trial by jury. . . . Third, is the right to confront one’s accusers. . . . We cannot presume a waiver of these three important federal rights from a silent record.
“What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought . . . and forestalls the spin-off of collateral proceedings that seek to probe murky memories.”
¶7In Pricepaul, supra, relied upon by the majority, the Court stated:
“. . . [W]e hold that when Pricepaul introduced the minute record of his prior California conviction which did not affirmatively disclose the rights protected by Boykin were voluntarily and intelligently waived and no other record was introduced, he made a showing sufficient to require an evidentiary hearing at which the government would have the burden to prove that the plea-taking was in accordance with Boykin.”
¶8In Lockhart, supra, the Court said:
“. . . [W]e hold that once a state prisoner has demonstrated that the plea taking was not conducted in accordance with Boykin, the state may, if it affirmatively proves in a post-conviction hearing that the plea was voluntary and intelligent, obviate the necessity of vacating the plea.”
¶9The record in this case reflects the following testimony offered by appellant during the hearing on appellant’s initial post-conviction petition on December 22, 1977:
“Q. At the time you were placed in custody did anyone read you your rights?
A. No.
Q. How long were you in jail before you signed any statements ?
A. Two weeks.
Q. Who talked to you during that period of time?
A. No one but Deputy Lloyd Smith and the high Sheriff.
Q. What did they say to you?
A. Well, ah Deputy Lloyd Smith mentioned something about the Hot Springs Rehabilitation Center. He said if I made a confession he would give me a recommendation in order to see that I obtained my requirements.”
¶10Even under the majority’s interpretation of Pricepaul, supra, and Lockhart, supra, which I submit is limiting the scope of the rule announced in Boykin, supra, McGee, supra, and Cusick, supra, requires a reversal in this case in view of the fact the State, although having cross examined witnesses called by appellant, did not offer any direct testimony to prove that the plea of appellant’s was in accordance with Boykin and was voluntarily and intelligently made in order to “obviate the necessity of vacating the plea.” United States v.Pricepaul, supra, Todd v. Lockhart, supra.
¶11Finally, the majority makes the following observation in its opinion:
“. . . This appeal, as it has been developed by counsel, is now only from the trial judge’s denial, without an evidentiary hearing, of the fourth amended petition. (Emphasis added)
“The amendment pointed out the trial court’s failure, in accepting the plea; to comply with Boykin, Byler, and Rule 24. The pivotal assertion in the amendment is this sentence: ‘The failure of the court to comply with the constitutionally mandated requirements of a trial judge in accepting pleas of guilty resulted in Petitioner’s plea of being an involuntary plea of guilty and abridged Petitioner’s rights under the United States Constitution and under the Rules of Criminal Procedure of the State of Arkansas. ’ ”
¶12I do not visualize appellant’s fourth amended petition in such a restrictive nature, but on the contrary, it is broader and embraces all of the contentions that were alleged in appellant’s initial petition, his second amendment as well as the third amendment. The heading of appellant’s paragraph number 4 in his fourth amended petition is as follows:
“4. Petitioner’s original motion in this cause should be amended to include the following.”
¶13Following the above quoted heading, appellant specifically discusses Boykin and Rules 24.4, 24.5 and 24.6 of the Arkansas Rules of Criminal Procedure as having been disregarded and contravened by the trial court at the time the plea of the appellant was taken. I submit, therefore, that the posture taken by the majority in this regard embraces all of the ingredients and characteristics of a technicality without any substance or merit.
¶14Moreover, it is well recognized that an amendment to a complaint that does not set forth a new cause of action, but is merely an expansion or amplification of the cause of action already stated, the amendment, as here, relates back and takes effect as of the date of the commencement of the original action. Bain & Company v. Deal, 251 Ark. 905, 475 S.W. 2d 708; Little Rock Traction & Electric Co. v. Miller, 80 Ark. 245, 96 S.W. 993; Western Coal & Mining Co. v. Corkille, 96 Ark. 387, 131 S.W. 963.
¶15The pronouncement in Pruitt v. Hutto, 542 F. 2d 458 (8th Cir. 1976), is appropriate at this point, where the Court stated that a petitioner was not foreclosed from litigating the issue of an unconstitutional in-court identification in a second state post-conviction action, even though the issue was not raised in the initial post-conviction proceeding, where there was no adequate showing that the matter was either finally adjudicated or intelligently waived in the previous proceeding. However, the majority would foreclose appellant from having a hearing on his fourth amended petition under the pretext that the trial court conducted a full evidentiary hearing on December 22, 1977. But it must be remembered that the trial court made no findings of fact and conclusions of law as required by our Criminal Rule 37.3(c), consequently, it cannot be said that the matter was either finally adjudicated or the matter intelligently waived in the previous proceeding.
¶16I would reverse this case because I think appellant’s learned counsel are eminently correct in asserting that the trial court failed to meet its obligations under Arkansas Rule of Criminal Procedure 24.5 which adopts the rule in Boykin, supra.