Nevada County Picayune and Gurdon Times Newspaper Archive

Buchheit Appeal Denied By Judge

There will be no trial for Keith Buchheit.

Eighth Judicial District Judge Phillip Purifoy, following a March 4 hearing, decided against overturning Buchheit's guilty plea.

Buchheit entered the plea of guilty and was sentenced to 32.5 years in the Arkansas Department of Corrections on a negotiated agreement on Nov. 3, 1997. He was charged with first degree murder in the beating death of Jake McKinnon on Nov. 9, 1996.

At the March 4 hearing, Buchheit's new attorney, Jeff Rosenzweig of Little Rock, said his client's former attorney, Craig Henry of Texarkana, provided ineffective counsel and the plea agreement should be overturned under Rules 26 and 37 of the Arkansas Rules of Criminal Procedure.

The basis for this argument was Henry failed to tell Buchheit he would have to serve at least 70 percent of the time given, or 22 years and nine months, before being eligible for any type of parole or other release.

Buchheit and his father, Charles, each testified on March 4, stating Henry had never informed them Buchheit would have to serve this amount of time, saying they were led to believe he would serve one-third or one-fourth of the sentence agreed upon.

Henry, himself, informed the court he practices law in northeast Texas and was not familiar with Arkansas' 70 percent rule for first degree murder cases.

Purifoy, in his written decision, stated, the court concludes the Arkansas Supreme Court acknowledged this test in Strickland v. Washington (1984) as to the challenge of challenges to pleas of guilty.

Under this ruling from the ASC, a defendant must show the counsel's performance was deficient and the performance prejudiced the defense as to depriving the defendant of a fair trial.

The question raised, Purifoy stated, was did Buchheit's attorney, Henry, inaccurately advise Buchheit as to the parole eligibility and if so, would the defendant have not pled guilty, going to trial instead.

Purifoy wrote there was an "absolute conflict" between the testimony of Henry and the Buchheits as to representations made on the issue of parole eligibility.

Henry, when on the stand, "unequivocally testified" he told Buchheit he was in no position to make any representations on parole eligibility, informing his client he must be prepared to serve the full sentence of 32.5 years.

Henry, during the hearing, also testified as to his unfamiliarity with Arkansas' 70 percent rule.

In Johnson v. State (1995), Purifoy wrote, the court held the conduct of an attorney must be examined at the time of the trial, or in this case the time of the plea agreement, and not with hindsight and not with outcome determination. Further, he wrote, the attorney is presumed by the court to be competent within a wide range of professional assistance.

The ASC held "a petition under Rule 37 may not be collaterally attacked voluntarily on the character of a guilty plea merely by demonstrating some advice as to parole eligibility was erroneous."

Basing his decision on these standards, Purifoy wrote the court could only find Buchheit failed to carry the burden of establishing ineffective counsel under the rule and the court could not set aside the plea agreement of Nov. 3, 1997.

He wrote it would be "manifest injustice" to set aside the agreement under Rule 26 as well.

Buchheit was the second of three suspects in the McKinnon case to be sentenced.

Toby Craig went to trial in August 1997 and was found guilty of first degree murder. He was sentenced to 40 years in the ADC and has to serve at least 70 percent, or 28 years.

The third and final suspect in the case is Johnny Wayne Cason. At the time of Buchheit's hearing on March 4, attorneys from both sides, along with family members tried to work out a plea agreement, only to have Cason refuse.

The agreement offered was 20 years with 10 suspended. Under the 70 percent rule, had Cason accepted, he would have only had to serve seven years.

However, sources said Cason refused to accept the agreement because he did not want to plead guilty to murder, saying his actions at the time did not warrant this charge.

His trial began with jury selection Monday, March 16.