Raymond W. Shepherd, Jr. v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

RAYMOND W. SHEPHERD, JR.,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR02-754

AUGUST 27, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION,

NO. CR1998-2983,

HON. DAVID BOGARD, JUDGE

DISMISSED

Sam Bird, Judge

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, Raymond Shepherd Jr.'s counsel has filed a motion to withdraw on the grounds that the appeal of this case, a revocation proceeding, is without merit. The motion was accompanied by a brief purportedly discussing all matters in the record that might arguably support an appeal, and a statement as to why counsel considers the one point raised as incapable of supporting a meritorious appeal. Shepherd was provided with a copy of his counsel's brief and notified of his right to file a list of points for reversal within thirty days. He filed no points. We dismiss his appeal because it is not properly before this court.

On August 24, 1998, the State filed in Pulaski County Circuit Court a single-count felony information against Shepherd, alleging that he committed the offense of possession of a controlled substance, ephedrine, as defined in Ark. Code Ann. § 5-64-1101(b) (Repl. 1997). On March 19, 1999, with the assistance of counsel, Shepherd pled guilty to possession of ephedrine. On April 1, 1999, the circuit court entered a judgment and commitment order, which provided that Shepherd had pled guilty and sentenced him to thirty-six months' probation, in addition to a fine of $200.

On August 21, 2000, the State filed a petition to revoke Shepherd's probation, acknowledging that he had been placed on probation for thirty-six months and fined $200. On November 26, 2001, Shepherd filed a motion to dismiss his probation revocation petition and a supporting brief, arguing that the trial court lacked jurisdiction to modify his sentence of probation and a fine. To support his argument, Shepherd cited the Arkansas Supreme Court's decisions in McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998), and in Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994). The trial court denied his motion to dismiss the revocation petition; thereafter, Shepherd purportedly pled guilty and was sentenced to six years' imprisonment, with five of those years suspended.

Shepherd's counsel now argues on appeal that this court's opinion in Pierce v. State, 79 Ark. App. 263, 86 S.W.3d 1 (2000), essentially renders Shepherd's appeal frivolous, and, thus, counsel filed a no-merit appeal as required by Anders. We decline to address this issue because the judgment in this case indicates that Shepherd pled guilty and thus no direct appeal may be taken. It is well-settled that a direct appeal may be taken from a guilty plea only in limited circumstances: an appeal from a conditional plea of guilty pursuant to Rule 24.3(b), an appeal relating to an issue involving testimony or evidence that occurred during a sentencing trial before a jury following a guilty plea, and an appeal from a post-judgment motion to amend an incorrect or illegal sentence following a guilty plea. Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003).

Nonetheless, after a review of the record, we note a potential issue that merits consideration. In the most recent notice of appeal filed by Shepherd's counsel, he designated the entire record for appeal; however, the record is devoid of the plea hearing in which Shepherd purportedly pled guilty to the revocation. What is present is a judgment and disposition order that indicates that Shepherd entered a plea of guilty. Furthermore, there is a plea statement signed by both Shepherd and his attorney that indicates that Shepherd entered into this guilty plea voluntarily. In fact, Shepherd placed his initials beside several questions on the plea statement indicating that he understood his rights regarding his plea. In spite of these facts, it is apparent that the record is devoid of any testimony regarding Shepherd's plea in open court. This case is similar to Reed v. State, 276 Ark. 318, 635 S.W.2d 472 (1982). In Reed, the court stated:

On May 15, 1980, appellant initiated proceedings for postconviction relief pursuant to A.R.Cr.P., Rule 37, Ark. Stat. Ann. Vol. 4A (Repl.1977). He alleged, inter alia, that his sentence was imposed in violation of A.R.Cr.P., Rule 24 and, therefore, his plea was not voluntarily nor intelligently made. After an evidentiary hearing, the court, in written findings of fact and conclusions of law, found to the contrary and denied relief. The court concluded any deficiencies in the September 28, 1977, plea proceeding were supplied at the postconviction relief hearing. Hence this appeal.

We need only to consider appellant's contention, through present appointed counsel, that the court erred in finding his guilty plea was entered voluntarily, knowingly, and intelligently. He argues that the judgment was imposed in violation of A.R.Cr.P., Rules 24.4, 24.5, 24.6 and 24.7, which provide:

Rule 24.4 in pertinent part:

The court shall not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally, informing him of and determining that he understands:

(a) the nature of the charge:

(b) the mandatory minimum sentence, if any, on the charge:

(c) the maximum possible sentence on the charge, including that possible from consecutive sentences:

....

Rule 24.5:

The court shall not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. The court shall determine whether the tendered plea is the result of a plea agreement. If it is, the court shall require that the agreement be stated. The court shall also address the defendant personally and determine whether any force or threats, or any promises apart from a plea agreement, were used to induce the plea.

Rule 24.6:

The court shall not enter a judgment upon a plea of guilty or nolo contendere without making such inquiry as will establish that there is a factual basis for the plea.

Rule 24.7:

The court shall cause a verbatim record of the proceedings at which a defendant enters a plea of guilty or nolo contendere to be made and preserved.

We are hampered in our review of this matter as the court reporter was unable to supply the court with a record of the September 28, 1977, proceeding which is required by Rule 24.7. In the absence of the required record, the State has the burden of proving the plea was voluntarily and intelligently entered. Irons v. State,267 Ark. 469, 591 S.W.2d 650 (1980); and Deason v. State, 263 Ark. 56, 562 S.W.2d 79 (1978). We will not reverse the findings of the trial court unless clearly against the preponderance of the evidence. Mitchell v. State, 271 Ark. 512, 609 S.W.2d 333 (1980).

Reed v. State, 276 Ark. 318, 319-320, 635 S.W.2d 472, 473 (1982).

Just as in Reed, Shepherd has not provided any proof that a record exists regarding his plea as required under Rule 24.7. Given the fact that the record indicates that the trial judge failed to make the inquiries required by Rule 24, in a proper case, this may be grounds for reversal. See, e.g., McGee v. State, 262 Ark. 473, 557 S.W.2d 885 (1977). However, the difference in the Reed case and the case now on appeal is that Reed sought post-conviction relief through Rule 37.1. To allow Shepherd to appeal directly in this case, albeit through a no-merit appeal, would permit a collateral attack on the guilty plea itself, which is permitted instead under Rule 37.1. Thus, we dismiss this appeal because it is not properly before this court.

Gladwin and Griffen, JJ., agree.