This appeal is from the denial of a Rule 37 petition in which the appellant alleges, as a basis for relief, ineffective assistance of counsel. In order to prevail, the appellant must show that legal counsel’s performance was deficient and that the deficiency was such that she suffered prejudice to the extent that she was deprived of the opportunity of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984). Due to the unusual circumstances existing in this case, we are persuaded that the appellant’s counsel was ineffective to the extent that the petition for relief should have been granted.
Bobbi Lynn Mitchell (now Howard) was, along with her then-husband, charged with kidnapping, rape, aggravated robbery, and theft of property arising out of an extraordinarily brutal series of events. As a result of her guilty pleas, made upon recommendation of her counsel and without any plea bargaining, she was sentenced to twenty years on the kidnapping charge and forty years on the rape charge, with the terms to run consecutively. In addition, she was sentenced to twenty years on the aggravated robbery count and to four years for theft of property, both to run concurrently with the kidnapping and rape charges.
The appellant subsequently filed a motion to set aside the plea, which the trial court denied. Thereafter, this Rule 37 petition was filed, and from its denial comes this appeal.
Upon her arrest, the appellant retained an attorney of her own choosing— the same attorney she had employed in a recent domestic relations matter. It would serve no useful purpose to recite her all of the details, except to say that the appellant’s attorney, admittedly relying on outdated Arkansas statutes, convinced his client that, upon her plea of guilty, the court would possibly impose sentence under the provisions of the Alternative Service Act, Ark. Code Ann. §§ 16-93-501 to-510 (1987 &Supp. 1989); that all or a portion of her sentence would likely be suspended; and that there was a reasonable possibility that she would not have to spend more than ninety days in prison before being released on parole.
However, three of the four charges to which the appellant pled guilty are class Y felonies, and suspension of sentence or probation would not be available. Ark. Code Ann. § 5-4-301(a)(1) (1987); Harris v. State, 15 Ark. App. 58, 689 S.W.2d 353 (1985). Legal counsel admitted, at both the hearing to set aside the guilty pleas and the hearing on the Rule 37 petition, that at the time he advised the appellant he was unaware of the current statutory restrictions on sentencing and parole.
The erroneous advice of legal counsel, standing alone, would be sufficient to establish the first prong of the Strickland test — the deficiency of legal counsel’s performance. However, those facts would not necessarily constitute prejudice justifying the granting of the relief sought.
But here, the record reveals that during the period of representation by her attorney, the appellant was undergoing psychiatric counseling, experiencing a problem with alcohol abuse, and finally, having sexual relations with her lawyer, both at his office and elsewhere.
In light of these facts, we are convinced that the extraordinary influence by the appellant’s attorney, to her prejudice, proved instrumental in her entering a guilty plea. That plea should be set aside.
Reversed and remanded.
Glaze, J., dissents.