Frederick Smith v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION IV

FREDERICK SMITH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-880

June 11, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTH DIVISION [NO. CR 2001-758]

HON. WILLARD PROCTOR, JR.,

JUDGE

AFFIRMED

The appellant in this criminal case pled guilty to two counts of armed robbery, two counts of theft of property, committing a terroristic act, three counts of aggravated assault, possession of a firearm by certain persons, and being a habitual offender. After a jury trial was held to set his sentence, appellant was sentenced to terms of forty and fifty years for two counts of aggravated robbery, twenty-five years for committing a terroristic act, and fifteen years for aggravated assault, to be served concurrently. From that decision, comes this appeal.

For reversal, appellant contends that the trial court erred in not inquiring as to whether his guilty plea was voluntarily and intelligently made, as required by Ark. R. Crim. P. 24.3,

24.4, and 24.5; and argues that the trial court erred in denying his motion for mistrial on the grounds of juror misconduct. We affirm.

Rule 24.4 of the Arkansas Rules of Criminal Procedure prohibits a trial court from accepting a plea of guilty without first addressing the defendant personally to inform him of and determine that he understands the nature of the charge, the mandatory minimum sentence on the charge, the maximum possible sentence on the charge, the possibility of sentence enhancement for repeat offenders, and that a guilty plea is a waiver of the rights to trial by jury and to confront the witnesses against him. There is nothing in the record to indicate that the trial judge made the inquiries required by Rule 24 and, 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, 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).

The Rule 24 question in the present appeal falls under none of these categories. Although appellant did participate in a jury trial for sentencing following his guilty plea, this argument does not relate to the issues developed therein, but is instead a collateral attack on the guilty plea itself. See, e.g., Haywood v. State, 288 Ark. 266, 704 S.W.2d 168 (1986). Consequently, this issue is not cognizable on direct appeal, and we do not address it. Wenote, however, that collateral attacks on sentences by prisoners are permitted under Rule 37.1, and that the factual basis of a guilty plea, if not sufficiently determined during the plea proceedings, may be established at the Rule 37 post-conviction hearing. Davis v. State, 267 Ark. 507, 592 S.W.2d 118 (1980).

The remaining issue does relate directly to the sentencing hearing and is therefore properly before us under Bradford v. State, supra. Appellant asserts that the trial judge erred in denying his motion for mistrial on the grounds of juror misconduct. We find no error.

A mistrial is a drastic remedy and should be declared only when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when the fundamental fairness of the trial itself has been manifestly affected. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000). The trial court has wide discretion in granting or denying a motion for a mistrial, and its decision will not be disturbed on appeal in the absence of a an abuse of that discretion. Id. Following an allegation of juror misconduct, the moving party bears the burden of proving both the misconduct and that a reasonable possibility of prejudice resulted from it. Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2001). We defer to the superior position of the trial court to evaluate the credibility of the witnesses and the prejudicial effect of the misconduct, if any. Id.; Solomon v. State, 323 Ark. 178, 913 S.W.2d 288 (1996).

In the present case, the record shows that, during the sentencing trial, some of appellant's relatives claimed that they overheard two jurors discussing appellant's case during a break. The jurors were questioned by the trial judge and denied that they werediscussing the case in any way. The trial judge expressly found that he believed that the jurors' testimony was truthful. Giving due deference to the trial court's superior position to assess the credibility of the witnesses, we cannot say that the trial court abused its discretion in denying appellant's motion for mistrial.

Affirmed.

Stroud, C.J., and Baker, J., agree.