Payne v. State

Dolphus Paul PAYNE v. STATE of Arkansas

CA CR 96-867                                       ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 13, 1997


1.   Criminal law -- DWI -- prior convictions are elements of crime
     for second, third, or fourth offense. -- Prior convictions are
     not merely enhancers but are, rather, elements of the crime
     for a second, third, or fourth offense of DWI.

2.   Criminal procedure -- conditional plea of guilty -- strict
     compliance with A.R.Cr.P. Rule 24.3(b) required to convey
     appellate jurisdiction. -- The law is well settled that a
     defendant ordinarily does not have a right to appeal a guilty
     plea except as provided in A.R.Cr.P. Rule 24.3(b); appeals
     from guilty pleas are typically dismissed for lack of
     jurisdiction; Rule 24.3(b) provides the only procedure for an
     appeal from a guilty plea; but if the express terms of Rule
     24.3(b) are not complied with, the appellate court acquires no
     jurisdiction to hear an appeal from a conditional plea;
     accordingly, the supreme court requires strict compliance with
     Rule 24.3(b) to convey appellate jurisdiction.

3.   Criminal procedure -- conditional plea of guilty -- Rule
     24.3(b) permits appellate review solely as to adverse rulings
     on motions to suppress illegally obtained evidence. -- Where
     A.R.Cr.P. Rule 24.3(b) provides for "review of an adverse
     determination of a pretrial motion to suppress evidence," the
     supreme court noted that it has interpreted this language to
     permit review of conditional guilty pleas solely with respect
     to adverse rulings on motions to suppress illegally obtained
     evidence.

4.   Criminal procedure -- conditional plea of guilty -- case
     involved attempt to appeal admissibility of evidence of prior
     convictions -- appeal dismissed because it did not involve
     suppression issue within ambit of A.R.Cr.P. Rule 24.3(b). --
     Where the case on appeal involved a plea of guilty to DWI
     Fourth Offense and an attempt by appellant to appeal the
     propriety of the circuit court's admission of prior DWI
     convictions into evidence, and the issue on appeal concerned
     the admissibility of evidence that was not alleged to have
     been illegally obtained, the supreme court declared that its
     cases made clear that the appeal should be dismissed because
     it fell outside the ambit of A.R.Cr.P. Rule 24.3; thus, the
     court dismissed the appeal because it did not involve a
     suppression issue contemplated by Rule 24.3(b).  

5.   Criminal procedure -- conditional plea of guilty --
     reservation-in-writing requirement of Rule 24.3(b) must be
     strictly followed. -- The reservation-in-writing requirement
     under A.R.Cr.P. Rule 24.3(b) must be strictly followed.


     Motion to Dismiss Appeal; granted.
     Nelson Edward Peacock, for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.


     Robert L. Brown, Justice.
     The Arkansas Court of Appeals has certified to this court the
State's motion to dismiss the appeal of appellant Dolphus Paul
Payne.  The State's motion has merit, and we dismiss the appeal due
to Payne's failure to comply with the requirements for review of a
conditional guilty plea under Rule 24.3 of the Arkansas Rules of
Criminal Procedure.
     The facts leading up to the State's motion are these.  On July
10, 1995, Payne was charged with DWI in violation of Ark. Code Ann.
 5-65-103 (Repl. 1993), and driving with a suspended or revoked
license in violation of Ark. Code Ann.  5-65-105 (Repl. 1993). 
The charging information stated that Payne was subject to enhanced
punishment under Ark. Code Ann.  5-65-111 & 112 (Repl. 1993), due
to four prior DWI convictions.  On August 29, 1995, Payne executed
a Guilty Plea Statement in which he acknowledged that he was
charged with at least a fourth DWI offense and with driving while
his license was suspended or revoked.  In Payne's Guilty Plea
Statement, a handwritten notation was added which read that he was
pleading to "D.W.I. only offense unclassified."
     In circuit court at the ensuing hearing, the prosecutor proved
only three prior DWI convictions.  Payne challenged two of those
prior convictions on the basis that he had represented himself in
the respective guilty pleas and had not been adequately warned by
the sentencing court of the dangers of self-representation.  The
circuit court, however, determined that the waivers were knowingly,
intelligently, and voluntarily made and allowed the three prior DWI
convictions into evidence.  At the hearing, the prosecutor, circuit
court, and defense attorney all appeared to contemplate an appeal
on the issue of the validity of the prior DWI convictions. 
Nevertheless, no specific writing appears in the record reserving
the right to appeal.
     On April 3, 1996, judgment was entered against Payne, and one
finding in the judgment read: "2. That the Defendant waived proof
as to the offense of D.W.I. only, and objected to enhancement of
this sentence from previous convictions."  In the judgment, the
circuit court found Payne guilty of DWI, Fourth Offense, and
specifically found that the three prior DWI convictions were
appropriate for enhancement purposes.  The judgment further
provided a sentence of two years imprisonment, a fine of $2,500,
and a suspension of his driver's license for a period of three
years.  Payne then filed a timely notice of appeal.  The State now
seeks to have the appeal dismissed based on the guilty plea and the
subsequent judgment and argues that Payne admitted all of the
elements of the felony offense by his guilty plea.  Thus, according
to the State's theory, this court is without jurisdiction to hear
the appeal.
     In support of its motion, the State points to the fact that
this court has previously stated that prior convictions are not
merely enhancers but are, rather, elements of the crime for a
second, third, or fourth offense of DWI.  See, e.g., Hagar v. City
of Fort Smith, 317 Ark. 209, 877 S.W.2d 908 (1994).  Thus, the
State urges that this appeal is an attempt by Payne to argue
against some, but not all, of the elements to which he pled guilty
in contravention of this court's oft-stated position against
"piecemeal" criminal appeals.  Payne counters that the trial court
actually made two determinations: (1) whether his conduct
constituted driving while intoxicated per the immediate charge; and
(2) whether the offense could be enhanced through the use of prior
convictions.  He further argues that these two determinations are
discrete and that he is appealing only from the circuit court's
subsequent use of the previous convictions.  
     We agree that the appeal must be dismissed for lack of
jurisdiction, though for a different reason from that presented by
the State.  The general law relating to appeals from guilty pleas
is as follows:
     The law is well settled that a defendant ordinarily does
     not have a right to appeal a guilty plea except as
     provided in Rule 24.3(b).  See Ark. R. App. P.-Crim. 1;
     Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). 
     Scalco v. City of Russellville, 318 Ark. 65, 883 S.W.2d 813 (1994); Eckl v. State, 312 Ark. 544, 851 S.W.2d 428
     (1993).  Appeals from guilty pleas are typically
     dismissed for lack of jurisdiction.  Scalco v. City of
     Russellville, supra.  Rule 24.3(b) provides the only
     procedure for an appeal from a guilty plea.  Eckl v.
     State, supra.  But if the express terms of Rule 24.3(b)
     are not complied with, the appellate court acquires no
     jurisdiction to hear an appeal from a conditional plea. 
     Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995);
     Scalco v. City of Russellville, supra; Noble v. State,
     314 Ark. 240, 862 S.W.2d 234 (1993).  Accordingly, this
     court requires strict compliance with Rule 24.3(b) to
     convey appellate jurisdiction.  Burress v. State, 321
     Ark. 329, 902 S.W.2d 225 (1995).
Tabor v. State, 326 Ark. 51, 55, 930 S.W.2d 319, 321-22 (1996).
     Rule 24.3 of the Arkansas Rules of Criminal Procedure provides
in pertinent part:
          With the approval of the court and the consent of
     the prosecuting attorney, a defendant may enter a
     conditional plea of guilty or nolo contendre
     [contendere], reserving in writing the right, on appeal
     from the judgment, to review of an adverse determination
     of a pretrial motion to suppress evidence.  If the
     defendant prevails on appeal, he shall be allowed to
     withdraw his plea.
Ark. R. Crim. P. 24.3(b) (emphasis added).  This court has
interpreted the highlighted language of Rule 24.3(b) to permit
review of conditional guilty pleas solely with respect to adverse
rulings on motions to suppress illegally obtained evidence.  See,
e.g., Eckl v. State, 312 Ark. 544, 851 S.W.2d 428 (1993)(dismissing
appeal containing statute of limitations and speedy-trial
arguments); Pickett v. State, 301 Ark. 345, 783 S.W.2d 854 (1990);
Jenkins v. State, 301 Ark. 20, 781 S.W.2d 461 (1989).
     Indeed, in Jenkins v. State, supra, the defendant was charged
with DWI Fourth Offense.  He moved in limine to suppress the use of
prior convictions due to lack of proper waiver of counsel.  The
motion was denied, and Jenkins entered a conditional plea of guilty
under Rule 24.3 and appealed the trial court's denial of his motion
to suppress.  This court dismissed that appeal in summary fashion,
stating in part:
          Jenkins's motion in limine to suppress the use of a
     prior conviction as evidence is distinguishable from the
     suppression of evidence contemplated by Rule 24.3(b).  A
     motion to suppress evidence presupposes that the evidence
     was illegally obtained.  Here, we are simply dealing with
     the admissibility of evidence, rather than "illegally
     obtained" evidence.  For illustrations of illegally
     obtained evidence, see Ark. R. Cr. P. Rule 16.2.
Jenkins, 301 Ark. at 21, 781 S.W.2d  at 462 (emphasis in original).
     Shortly after our decision in Jenkins v. State, supra, this
court applied the Jenkins principle in a second case.  See Pickett
v. State, supra.  In Pickett, we again dismissed an appeal from a
plea of nolo contendere to DWI Third Offense and did so because the
appellant was contesting on appeal the admissibility of prior DWI
convictions due to ineffective waivers of counsel.  We underscored
once more that conditional guilty pleas and subsequent review of
the court's failure to suppress evidence pertains only to evidence
illegally obtained -- not to evidence wrongfully admitted.
     The distinction emphasized in Jenkins v. State and Pickett v.
State decides the case at bar.  The present case similarly involves
a plea of guilty to DWI Fourth Offense and an attempt by Payne to
appeal the propriety of the circuit court's admission of prior DWI
convictions into evidence.  Thus, the issue on appeal concerns the
admissibility of evidence which in no wise was alleged to have been
illegally obtained.  Our cases, therefore, make it clear that this
appeal should also be dismissed, as it falls outside the ambit of
Rule 24.3.
     We dismiss this appeal because it does not involve a
suppression issue contemplated by Rule 24.3(b).  Therefore, we need
not address a second area of concern, which is whether the appeal
from the conditional guilty plea was reserved in writing, as
required by the rule.  Suffice it to say that we have held that the
reservation-in-writing requirement under the rule must be strictly
followed.  See, e.g., Burress v. State, 321 Ark. 329, 902 S.W.2d 225 (1995); Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780
(1995); Noble v. State, 314 Ark. 240, 862 S.W.2d 234 (1993).
     Appeal dismissed.