dissenting. The majority opinion states for the purpose of appeal it may be assumed that appellant’s versions of the unreported discussion concerning the length of time he would serve are correct. With this I agree, In fact, I interpret the state’s brief to admit the truth of this allegation. I would reach a different result from the majority because it is quite obvious that the sentencing judge, as much as the appellant, the prosecuting attorney and the defense attorney, all understood appellant would be eligible to be considered for parole upon completion of one third of his sentence. The trial court went to a great deal of trouble in looking up the law and explaining it to the appellant before pronouncing sentence. In my opinion, the court would have considered a lesser sentence if there was any thought that appellant would be required to serve one half of his time before becoming eligible for parole.
In my opinion, this amounts to a critical error in sentencing. It is quite clear that the court had in mind appellant would be required to serve about six years before being considered for parole. Had he known the Department of Correction would cause the appellant to serve ten years before being considered for parole, he would simply have cut the sentence to twelve years. In my opinion, the appellant did not voluntarily, knowingly and intelligently enter a guilty plea to a sentence which would require him to serve ten years. There is no doubt that the court and all parties before it considered the appellant was being sentenced to a term which would cause him to serve about six years before having his eligibility for parole considered. Although I have been unable to find any Arkansas case deciding this particular question, there are literally hundreds of federal cases which I interpret to hold relief should be granted under these circumstances. This amounts to allowing the Department of Correction to determine the length of a sentence to be served rather than the sentencing court.
There is no question in my mind but that the sentencing judge’s probable expectations in the imposition of this sentence have been frustrated. His intentions were clearly stated at the time of the sentencing when he told appellant there was no way he could be forced to serve one half of his time under the sentence being imposed. In Addonizio v. United States, 573 F.2d 147 (3d Cir. 1978), the Court stated:
“The intent and expectations of the district court judge who sentences ... are controlling and . . . must be searched out to determine if relief may be ordered ... in our judgment, there can be no better evidence of a sentencing judge’s expectation or intent that his own statement of those facts . . .
Moral and legal principle have been woven together in forming a right of a prisoner to relief upon proof that the sentencing judge’s intentions and expectations regarding the prisoner’s incarceration have been frustrated by a postsentencing change in criteria governing parole determination. Addonizio v. United States, supra. See also United States v. Somers, 552 F.2d 108 (3d Cir. 1977); and United States v. Solly, 559 F. 2d 230 (3d Cir. 1977).
Since our own statutes in this regard are patterned after the federal statute, I feel our interpretation should be guided, at least to some extent, by the decisions of the federal courts.
It is possible to grant the relief under the circumstances presented, in my opinion. However, if relief cannot be granted in a Rule 37 proceeding, it seems logical that such relief could be granted by way of habeas corpus proceedings against the Department of Correction.