Gregory Reeder v. State of Arkansas

ar02-422

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION IV

[Supplemental Opinion on Denial of Petition for Rehearing delivered September 10, 2003.]

CACR02-422

MAY 14, 2003

GREGORY REEDER AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT

v. [CR2001-2344]

STATE OF ARKANSAS HONORABLE WILLARD PROCTOR, JR.,

APPELLEE JUDGE

APPEAL DISMISSED

Olly Neal, Judge

Appellant, Gregory Reeder, was charged by felony information with aggravated robbery, theft of property, and residential burglary. Following plea negotiations and prior to any pretrial motions, appellant agreed to plead guilty to theft of property, residential burglary, and robbery. Appellant was sentenced to twenty years in the Arkansas Department of Correction.

Appellant filed a pro se notice of appeal without the knowledge of his counsel, requesting the complete transcript of the designated record of appeal. Thereafter, appellant filed a Motion for Rule 37.2 against his counsel. The trial court denied the motion, finding that it lacked jurisdiction because a notice of appeal had been previously filed.

Pursuant to Anders v. California, 386 U.S. 738 (1967) and Ark. Sup. Ct. R. 4-3(j), appellant's counsel has filed a motion to withdraw on grounds that the appeal is wholly without merit. The motion is accompanied by an abstract of the proceedings below and by a brief in which counsel explains why there is nothing in the record that would support an appeal. The clerk of this court provided appellant with a copy of his counsel's brief and notified him of his right to file a pro se statement of points for reversal within thirty days. Appellant filed a motion to allow belated points for reversal; however, that motion was denied. There were no rulings made that were adverse to appellant that warrant an Anders review; however, we dismiss the appeal for lack of jurisdiction.

Prior to trial, appellant appeared before the court, and the following exchange occurred:

Court: Mr. Reeder, I've been handed this form which is entitled Plea Statement and appears to bear your signature above where it says Defendant. Did you sign this form?

Defendant: Yes.

Court: You understand you are charged with Robbery, which is a felony for which you could receive from 5 to 20 years in the Department of Corrections and fines up to $15,000, and in Count 2 you are charged with Theft of Property for which you could receive from 3 to 10 years in the Department of Correction and fines up to $10,000. Do you understand the minimum and the maximum sentences that can be imposed?

Defendant: Yes.

Court: How much education do you have?

Defendant: Twelfth grade.

Court: Were you able to read and understand the plea statement?

Defendant: Yes.

Court: Apart from any plea agreement that you might have entered into with the State, has anybody promised you, threatened you, forced you or done anything to make you enter into this plea?

Defendant: No.

Court: Are you presently under the influence of any drugs or alcohol or anything that might impair your ability to understand what's going on?

Defendant: No.

Court: Are you satisfied with the services of your attorney?

Defendant: Yes.

Court: Are you now or have you ever been a patient in a mental institution?

Defendant: No.

Court: Do you understand that there are certain rights that you are giving up by entering into this plea statement? First of all, you cannot appeal this to the Arkansas Supreme Court, but in addition to this, you have a right to a trial by a jury with the burden on the State of proving you guilty beyond a reasonable doubt.

At the trial you would have a right to testify or not testify, to confront and cross-examine any witness that might be called by the State, as well as the right to have compulsory attendance of witnesses that would be called on your own behalf. And you understand that - - do you understand those rights?

Defendant: Yes.

* * *

Court: In order to maintain the charge of Robbery, the State would have to prove beyond a reasonable doubt that you did employ or threaten to employ physical force upon another person while attempting to commit the offense of theft of property. Did you, in fact, do that?

Defendant: Yes.

Court: If we had a trial in this matter, do you believe that the State would be able to prove that you did this?

* * *

Defendant: Yes.

Court: So to the charge of Robbery, how do you wish to plea?

Defendant: Guilty.

Court: You are pleading guilty because you are, in fact, guilty and for no other reason?

Defendant: Yes.

Court: Okay. In order to sustain the charge for Theft of Property, the State would have to prove that you took, knowingly took unauthorized control over property of another having a value of less than $2,500 but more than $500 and you did so withthe intent to deprive the owner of that property. Did you, in fact, do that?

Defendant: Yes.

Court: So to the charge of Theft of Property, how do you wish to plea?

Defendant: Guilty.

Court: You are pleading guilty because you are, in fact, guilty and for no other reason?

Defendant: Yes.

* * *

Court: Court is going to find the plea is knowingly and intelligently and voluntarily entered upon advice of counsel, that a factual basis exists for the plea. So the plea of not guilty will be withdrawn and a plea of guilty will be entered. I understand that this is a negotiated plea?

Prosecutor: That's correct, Your Honor.

* * *

Rule 1(a) of the Arkansas Rules of Appellate Procedure - Criminal reads in part that "[e]xcept as provided by ARCrP 24.3(b) [that permits an appeal from a conditional plea of guilty,] there shall be no appeal from a plea of guilty or nolo contendere." However, the supreme court has approved two exceptions to this rule. Those exceptions are: (1) an appeal relating to an issue involving testimony or evidence which occurred during a sentencing trial before a jury following a guilty plea; and (2) an appeal from apost-judgment motion to amend an incorrect or illegal sentence following a guilty plea. See Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003). We have interpreted Ark. R. Crim. P. 24.3(b) to require strict compliance with the writing requirement in order for the appellate court to obtain jurisdiction; this includes a requirement that the conditional plea be reserved in writing by the defendant. McMullen v. State, 79 Ark. App. 15, 82 S.W.3d 827 (2002). Absent compliance with the express terms of Rule 24.3(b), the appellate court acquires no jurisdiction to hear an appeal, even when there has been an attempt at trial to enter a conditional plea. Id.

It is clear from the record that appellant entered guilty pleas. These pleas were not conditionally entered, and there are no applicable exceptions that permit appeal. Therefore, we dismiss for lack of jurisdiction.

Appeal dismissed.

Pittman and Roaf, JJ., agree.

SUPPLEMENTAL OPINION ON DENIAL OF PETITION FOR REHEARING

SEPTEMBER 10, 2003

DIVISIONS I & IV [unpublished]

Olly Neal, Judge

In an opinion delivered May 14, 2003, we dismissed appellant's Anders appeal based upon our determination that he entered unconditional guilty pleas to robbery, theft of property, and residential burglary. Particularly, that opinion specified that appellant entered negotiated guilty pleas to the robbery and theft of property charges. Following our opinion dismissing the Anders appeal, appellant filed a motion for reconsideration. We, therefore, treated appellant's motion as a petition for rehearing made pursuant to Rule 2-3 of the Rules of the Supreme Court and Court of Appeals. Thereafter, in an opinion delivered June 18, 2003, we directed the Clerk to recall the mandate sent to the clerk of the Pulaski County Circuit Court, Fifth Division.

In our opinion delivered June 18, 2003, we stated that we failed in our May 14, 2003 opinion to note that there was no indication that a negotiated plea of guilty was entered as to the residential burglary charge, although the judgment and commitment order so reflects. The record of the proceedings does not reflect that a plea was made pursuant to Rules 24.4, 24.5, and 24.6 of the Ark. R. Crim. P. with regard to the residential burglary charge. As to the judgment of conviction for residential burglary, appellant may seek post-trial relief from the trial court.

Pittman, Gladwin, Bird, Vaught, and Roaf, JJ., agree.