Johnny Lee Russell, Jr. v. State of Arkansas

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ar03-744

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

JOHNNY LEE RUSSELL, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-744

JUNE 30, 2004

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SEVENTH DIVISION

[NO. CR-2003-34]

HONORABLE BARRY ALAN SIMS,

JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Johnny Lee Russell pleaded guilty to robbery and misdemeanor theft of property, and was sentenced as a habitual offender to thirty years in prison. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j)(1) of the Rules of the Arkansas Supreme Court and Court of Appeals, Mr. Russell's counsel has filed a motion to withdraw on the grounds that the appeal is without merit. Mr. Russell was provided with a copy of his counsel's brief and notified of his right to file a list of pro se points on appeal, but has declined to file any points. Because Mr. Russell failed to raise any points for reversal, the State has not filed a brief.

This case was initiated when the State filed a two-count information against Mr. Russell on January 2, 2003, alleging that he committed robbery and theft. On March 10, 2003, Mr. Russell signed a plea statement, wherein he acknowledged the legal rights he

was waiving by pleading guilty to both charges. On the same day a hearing was held, and the trial court verbally advised Mr. Russell of the effect of his guilty pleas. Mr. Russell indicated to the trial court that he had discussed the case carefully with his attorney, that he understood his rights, and that his guilty pleas were not induced by any force, threat, or promise. The prosecuting attorney then set out the facts supporting the charges. At the conclusion of the March 10, 2003, hearing, the trial court set the sentencing hearing for March 24, 2003.

At the beginning of the March 24, 2003, hearing, Mr. Russell attempted to withdraw his guilty pleas. His counsel stated:

Mr. Russell tells me he is not-he was not comfortable entering the plea. He would like to withdraw his plea and under 26.1, it is not something-it is-it's up to you if you want to let him withdraw his plea in the interest of justice. There are several grounds listed under that. `In the interest of justice' would include ineffective assistance of counsel and others. I certainly don't argue that I was ineffective, but if you feel he was taking a plea without knowing everything, then I would ask if the Court would allow him to withdraw his plea and allow us to go forward with the bench trial.

The prosecuting attorney opposed Mr. Russell's motion, stating, "When he went through the pleading he was completely notified about everything and I'd ask the court not to allow him to withdraw his plea." The trial court denied Mr. Russell's motion, and announced that he was sentencing him to thirty years for robbery, with the misdemeanor theft conviction to merge into that sentence.

Mr. Russell's counsel correctly asserts in his brief that the only adverse ruling was the trial court's refusal to permit him to withdraw his two guilty pleas, and that the adverse ruling cannot be the basis for a meritorious appeal. Plea withdrawals are governed by Rule 26.1 of the Arkansas Rules of Criminal Procedure, which provides:

(a) A defendant may withdraw his or her plea of guilty or nolo contendere as a matter of right before it has been accepted by the court. A defendant may not withdraw his or her plea of guilty or nolo contendere as a matter of right after it has been accepted by the court; however, before entry of judgment, the court in its discretion may allow the defendant to withdraw his or her plea to correct a manifest injustice if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of his or her motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant's plea. A plea of guilty or nolo contendere may not be withdrawn under this rule after entry of judgment.

(b) Withdrawal of a plea of guilty or nolo contendere shall be deemed to be necessary to correct a manifest injustice if the defendant proves to the satisfaction of the court that:

(i) he or she was denied the effective assistance of counsel;

(ii) the plea was not entered or ratified by the defendant or a person authorized to do so in his or her behalf;

(iii) the plea was involuntary, or was entered without knowledge of the nature of the charge or that the sentence imposed could be imposed;

(iv) he or she did not receive the charge or sentence concessions contemplated by a plea agreement and the prosecuting attorney failed to seek or not to oppose the concessions as promised in the plea agreement; or

(v) he or she did not receive the charge or sentence concessions contemplated by a plea agreement in which the trial court had indicated its concurrence and the defendant did not affirm the plea after receiving advice that the court had withdrawn its indicated concurrence and after an opportunity to either affirm or withdraw the plea.

(c) The defendant may move to withdraw his or her plea of guilty or nolo contendere to correct a manifest injustice without alleging that he or she is innocent of the charge to which the plea was entered.

Pursuant to Rule 26.1, a defendant may move to withdraw a guilty plea to correct a manifest injustice, and in exercising its discretion the trial court is required to consider the reasons advanced in support of the motion. In the instant case, Mr. Russell did not allege any of the five reasons listed in Rule 26.1(b), and his only basis for withdrawing his guilty pleas was that he was not comfortable entering the pleas.

Where a factual basis exists for the plea and the defendant initially admits that the plea is voluntary, the defendant faces an "uphill climb" to overcome the consequences of the plea. Mangrum v. State, 70 Ark. App. 46, 14 S.W.3d 889 (2000). A plea of guilty is not to be lightly disclaimed, and the trial judge is not required to accept a defendant's repudiation of his earlier statements regarding the voluntariness of his pleas. Id. Mr. Russell did not even dispute the voluntariness of his guilty pleas below, and there was clearly no abuse of discretion in the trial court's decision that withdrawal of the pleas was not necessary to correct a manifest injustice.

Based on our review of the record and the brief presented by appellant's counsel, we conclude that there has been full compliance with Rule 4-3(j)(1) and that the appeal is without merit. Appellant's counsel's motion to be relieved is granted and the judgment is affirmed.

Affirmed.

Pittman and Hart, JJ., agree.