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February 8, 2005 - The Arkansas Gazette (AR)

Woman Got Bad Advice, Free Her From Prison, Judge Says

By Linda Satter

Return to Drug War News: Don't Miss Archive

An Arkansas woman who accepted a prosecutor's offer on the basis of bad advice from her attorney should be freed from prison, a federal judge has recommended.

The finding that Rebecca Cloud of Independence County was the victim of ineffective counsel and is entitled to vacation of her 2002 guilty pleas in Independence County Circuit Court was made last week by U.S. Magistrate Judge H. David Young.

Young's recommendation, received Monday by Cloud's new attorney, Craig Lambert of Little Rock, now proceeds to U.S. District Judge Leon Holmes for approval or rejection.

Lambert filed a motion Monday asking Young to exercise his authority to order Cloud's immediate release while the issue is pending before Holmes. Lambert noted that if Holmes ultimately agrees that Cloud should be resentenced in Independence County, she likely would be sentenced to time that she already has served and would be released immediately.

"The facts and circumstances of this case cry out for Cloud's immediate release from custody," Lambert wrote. He said Holmes' review could be "time consuming," and in the meantime the state will "undoubtedly attempt to obtain a stay of the court's order directing Cloud's release."

The 43-year-old mother of two pleaded guilty June 20, 2002, to manufacturing meth- amphetamine in the presence of minors, possession of methamphetamine with intent to deliver, possession of drug paraphernalia with intent to use, possession of pseudoephedrine with intent to manufacture methamphetamine and possession of anhydrous ammonia in an unlawful container.

Before Cloud pleaded guilty, her attorney, Jill Blankenship of Batesville, told her that Prosecuting Attorney Don McSpadden had presented two sentencing options if she pleaded guilty -- a four-year term in a regional punishment facility or a 10-year sentence in prison.

Because the prison's 105-day boot camp program for first offenders was not available under the shorter term in the regional punishment lockup, Cloud accepted the 10-year program, thinking she was eligible for boot camp. But neither Blankenship nor Cloud knew that a conviction for manufacturing methamphetamine rendered Cloud ineligible for the boot camp, although Mc-Spadden later testified that he had told Blankenship that "on more than one occasion."

Nevertheless, through a "mistake" by the Department of Correction, according to testimony cited in Young's order, Cloud was allowed into the boot camp. She graduated from the program Jan. 13, 2003, and was released. Two months later the department discovered its error and Cloud was returned to prison to serve the remainder of her 10-year sentence. Lambert said that Cloud's crimes qualified her for the state's "70 percent rule," so she must serve at least seven years before becoming eligible for parole in March 2009.

Lambert said that until Cloud was arrested and taken to the prison's McPherson Unit, where she has been for the past 21 months, she had been working at a convenience store, spending time with her high-school-age daughters and attending Narcotics Anonymous meetings.

Young noted in his order that while in prison and during her brief release, Cloud passed drug screens, completed a nine month drug-rehabilitation program and incurred no disciplinary actions.

Young found that Cloud's constitutional right to a fair trial was violated by lack of effective assistance of counsel. His order said: "Despite notice that Ms. Cloud was entering the guilty pleas with the intention and hope of entering the Boot Camp Program, counsel failed to discover and communicate to Ms. Cloud her ineligibility for the program.

While Ms. Cloud understood there was no guarantee of admission and completion of the Boot Camp Program, her testimony is credible that she was motivated by the opportunity to enter the program and would not have taken the ten-year sentence in the ADC had she been informed that she was not eligible." Under the alternative four year sentence, and considering Cloud's lack of bad conduct in prison, she probably would have served just two years in a regional punishment facility, Young said.

He called it "significant" that she could have earned two years of good time to cut her four-year term in half, yet has now been imprisoned for about 28 months, including her initial stint before she graduated from the boot camp. "In order to restore Ms. Cloud to the position she was in prior to the Sixth Amendment violation, we find that she should be returned to state court, her previous guilty pleas should be vacated, and she should be allowed to enter guilty pleas and accept the state's offer to serve four years in the Regional Punishment Facility," Young said.

He said he would leave "the mechanics" of amending the Independence County judgment to reflect "time served" to the local authorities. McSpadden said Monday that he was between court hearings and had not had time to read the ruling and didn't want to comment.

Blankenship also was in court Monday and did not return a call left at her office.

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