Jonathan B. Gonder v. State of Arkansas
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Jonathan B. GONDER v. STATE of Arkansas
CACR05-262
Court of Appeals of Arkansas
Opinion delivered May 3, 2006
1.
J URISDICTION – THERE WAS COMPLIANCE WITH A RK. R ULE C RIM. P. 24.3
ESTABLISHING APPELLATE JURISDICTION.–
On the facts presented, there was
compliance with Ark. R. Crim P. 24.3 establishing appellate jurisdiction where the
Report of Plea Negotiations reflected what was agreed between the State and
appellant, and it was in writing, signed by the prosecutor, defense counsel, and
appellant; the contents of the Report were recited in open court by the trial court and
agreed to by appellant and the State, as well as by the trial court by verbal assent, and
because the Report was presented in open court at the plea hearing, and was accepted
by the trial court in total, this rendered it contemporaneous within the case law
construing Rule 24.3(b).
2.
C RIMINAL PROCEDURE – APPELLANT GAVE CONSENT TO SEARCH – TRIAL COURT DID
NOT ERR IN DENYING MOTION TO SUPPRESS.–
The trial court’s denial of appellant’s
motion to suppress was not clearly erroneous where appellant gave both verbal and
written consent to the search of his home, and the trial court was entitled to believe
the testimony given by the police officer who conducted the search.
Appeal from Jefferson County Circuit Court; Jodi Raines Dennis, Judge; affirmed.
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Brown & McKissic, LLP, by: Gene E. McKissic, for appellant.
Mike Beebe, Att’y Gen., by: Misty Wilson Borkowski, Ass’t Att’y Gen., for appellee.
J OHN B. R OBBINS, Judge. Appellant Jonathan B. Gonder appeals his convictions for
possession of controlled substances (marijuana and cocaine) with intent to deliver. This
appeal follows his entry of a conditional guilty plea after the trial court denied his motion to
suppress. The State argues that we do not have jurisdiction to consider appellant’s appeal
because appellant's conditional guilty plea does not conform with Ark. R. Crim. P. 24.3(b)
(2005), and asks that we dismiss the appeal. We do not dismiss the appeal. However, upon
consideration of the merits, we affirm appellant’s convictions.
Whether a defendant has complied with Rule 24.3(b) is a jurisdictional question. See
Ray v. State, 328 Ark. 176, 941 S.W.2d 427 (1997). The State filed a motion to dismiss for
lack of jurisdiction, prior to this appeal being submitted to our court, which we denied on
January 11, 2006. Upon the State’s reassertion of its motion to dismiss, we again consider
the jurisdictional question.
The general rule is that when a defendant pleads guilty to a charge, he or she waives
the right to appeal that conviction. Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998).
For relevant purposes before us, only a conditional plea pursuant to Rule 24.3(b) enables a
defendant to retain the right to appeal an adverse suppression ruling. Ark. R. App. P.–Crim.
1(a) (2005); Barnett v. State, 336 Ark. 165, 984 S.W.2d 444 (1999). Rule 24.3(b) states:
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With the approval of the court and the consent of the prosecuting attorney, a
defendant may enter a conditional plea of guilty or nolo 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.
Our supreme court has interpreted Rule 24.3(b) to require strict compliance with the
requirement that the right to appeal be reserved in writing. Barnett v. State, supra. This is
so even when there has been an attempt to enter a conditional plea at the trial court level.
Ray v. State, supra. In addition, the writing must be contemporaneous with the defendant
reserving his or her right to appeal. Tabor v. State, 326 Ark. 51, 930 S.W.2d 319 (1996).
We also look for an indication that the conditional plea was entered with the approval of the
trial court and the consent of the prosecuting attorney. Noble v. State, 314 Ark. 240, 862
S.W.2d 234 (1993).
In this instance, the transcript reveals the following pertinent facts. After a search for
and seizure of marijuana and cocaine from appellant’s home in March 2002, his attorney
filed a motion to suppress, which was ultimately denied in December 2002. In December
2004, the prosecution and defense entered into plea negotiations. On December 9, 2004, a
document was filed, entitled “Report of Plea Negotiations,” which reflected that for the two
drug charges, the prosecutor was recommending two ten-year sentences, for appellant to
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forfeit any seized property, and for appellant “to remain free on bond through the pendency
of his appeal of the Court’s denial of his Motion to Suppress Evidence.” The opening
paragraph of the document reflected that both the State and the defendant and his counsel had
agreed to dispose of this case by a “plea of guilty CONDITIONAL” subject to the approval
of the trial court. This document was signed by the prosecuting attorney, appellant’s
attorney, and appellant.
On December 14, 2004, appellant formally entered his negotiated plea of guilty in
open court, with the trial judge, the prosecutor, defense counsel, and appellant present. The
trial judge announced the crimes with which appellant had been charged and the range of
punishments for each crime, asked appellant if he was satisfied with his representation, and
verified that appellant was knowingly and intelligently waiving his right to a jury trial. The
prosecutor asked the trial judge if she had a copy of the plea; the trial judge responded
affirmatively. The trial judge recited verbatim the “deal” contained in the Report of Plea
Negotiations, including that appellant would be free pending his appeal of the suppression
issue, and she asked appellant if he had been promised anything else in order to acquire a
guilty plea from him. Appellant responded, “no.” After reading the specific details of the
plea negotiation from the Report, the trial judge asked if that was his understanding of the
plea negotiation. Appellant affirmed that it was and that he intended to plead guilty in line
with that offer. The judge asked defense counsel if he concurred in the plea agreement;
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defense counsel said that he did. The judge accepted the recommendation of the State,
sentenced appellant to concurrent ten-year sentences, and reaffirmed to appellant that he
would be free during the appeal of his motion to suppress.
A judgment containing the two convictions was signed by the trial judge and filed on
December 28, 2004, reflecting the sentences imposed and that each was a “negotiated plea
of guilty (CONDITIONAL).” The judgment also recited:
**SPECIAL CONDITIONS: DEFENDANT SHALL FORFEIT ALL PROPERTY
SEIZED. DEFENDANT SHALL REMAIN FREE ON BOND THROUGH THE
PENDENCY OF HIS APPEAL OF THE COURT’S DENIAL OF MOTION TO
SUPPRESS EVIDENCE.
Appellant filed a timely notice of appeal on January 13, 2005, appealing the denial of his
motion to suppress and the judgment of convictions.
We hold that this conditional plea is sufficient to confer appellate jurisdiction in
our court. Therefore, we deny the State’s second motion to dismiss. The Report of Plea
Negotiations reflected what was agreed between the State and appellant; it was denoted a
conditional guilty plea specifically noting that appellant would be free during his appeal of
the suppression issue; and it was in writing, signed by the prosecutor, defense counsel, and
appellant. This Report was provided to the trial court for the actual entry of the plea on
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December 14, 2004. The contents of the Report were recited in open court by the trial
court and agreed to by appellant and the State, as well as by the trial court by verbal assent.
The judgment that followed days later, signed by the trial judge and filed of record, reflected
without ambiguity that these sentences were conditional negotiated pleas, with capitalized
type emphasizing that appellant would be free pending the appeal of the motion to suppress.
We are convinced that the Report was a sufficient writing to memorialize appellant’s intent
to enter a conditional plea.
Further, we are convinced that because the Report was presented in open court at the
plea hearing and was accepted by the trial court in total, this rendered it contemporaneous
within the case law construing Rule 24.3(b). Even assuming that the judgment that was filed
two weeks later would not be considered “contemporaneous” to the plea, the judgment does
nothing but reinforce what occurred at the plea hearing where the Report was accepted by
the trial court. Compare Hill v. State, 81 Ark. App. 178, 100 S.W.3d 84 (2003). On these
facts, we hold that there was compliance with Ark. R. Crim. P. 24.3 establishing appellate
jurisdiction.
This brings us to the merits of the appeal. Appellant contends that the trial court
clearly erred in not granting his motion to suppress. We disagree. On appeal from the denial
of a motion to suppress, we conduct a de novo review based upon the totality of the
circumstances, reviewing findings of historical fact for clear error, giving due weight to
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inferences drawn by the trial court. See Thornton v. State, 85 Ark. App. 31, 144 S.W.3d 766
(2004). Thus, the trial court’s ruling will not be reversed unless it is clearly erroneous. See
id. In this instance, the search of appellant’s house came as the result of the police obtaining
consent to enter and then searching the premises.
There is a presumption of
unreasonableness regarding warrantless entry into a home, but it may be overcome if the
State obtains consent from the homeowner. See Carson v. State, __ Ark. __, __ S.W.3d __
(July 1, 2005); Ark. R. Crim. P. 11.1. The State bears the burden to demonstrate clear and
positive testimony that consent was freely and voluntarily given. See Medlock v. State, 79
Ark. App. 447, 89 S.W.3d 357 (2002). Consent must not be the product of express or
implied coercion or duress. Russey v. State, 336 Ark. 401, 985 S.W.2d 316 (1999).
With these statements of the law, we proceed to examine the interaction between
appellant and the police on the night of the search. Appellant’s home was under surveillance
by the Pine Bluff Police Department when an officer observed a vehicle leave the residence.
Upon following that vehicle, the police tried to initiate a stop, but the driver fled the vehicle,
abandoning a one-pound bag of marijuana in plain view inside the vehicle. Close in time to
that stop, other officers stopped another vehicle that had left the residence; appellant’s wife
was driving.
Officer Whitfield told appellant’s wife that he wanted to follow her back to their
house to talk to appellant about drugs being in their house. The wife was cooperative and
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complied, and they drove back to the Gonder residence; it was around midnight. Officer
Whitfield said he approached the door, knocked, and appellant came to the door. Appellant’s
wife was with Officer Whitfield at the time. The officer asked to come in, and appellant let
him. Officer Whitfield said he immediately smelled a strong odor of marijuana when the
door was opened. He told appellant that he had just stopped a car that came from appellant’s
house; that there was a pound of marijuana in the car; and that he suspected there were more
drugs in appellant’s house.
Upon entry, the officer saw two men sitting in the living room, and one had a bag of
marijuana in plain view; there was also a roach clip in plain view. Appellant at first said that
the young man, whose car was found with the marijuana in it, had set him up. Officer
Whitfield said he asked appellant for consent to search the house, but if none were given and
appellant wanted him to leave, he would leave and obtain a search warrant. Appellant asked
the officer to come into the kitchen to speak in private, and appellant expressed concern
about his wife and children. Officer Whitfield told appellant that the smell of marijuana
smoke was already in the house, and that he should not have his children there if he was
going to sell or smoke the drug; appellant apologized to the officer for that. When appellant
asked the officer to let his wife and kids go, Officer Whitfield assured appellant that he was
only there regarding other drugs that might be in the house. After some discussion with the
officer, appellant began taking responsibility for the marijuana that the young man had in the
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living room. The officer verbally Mirandized appellant. The officer added that if appellant
was cooperative and gave consent to search, then neither appellant or his family would be
taken into custody that night. The officer said that when he offered to leave and get a search
warrant, appellant told him to come back and talk again, whereupon he agreed to the search.
At 12:45 a.m., appellant signed the consent form to search. Following that, appellant said
he did not want his house “torn up” like it was the last time his house was searched.
Thereupon, he reached up to pull the cord attached to the disappearing stairway leading to
the attic, which was where appellant kept approximately eighteen pounds of marijuana and
a small amount of cocaine.
Officer Whitfield agreed that he and appellant had a long conversation inside the
house. However, he stated that he never was confrontational, nor did he ever state that
appellant was legally obligated to cooperate, having more than once offered to leave to get
a warrant. The officer denied ever threatening appellant or his family in order to get consent,
and he confirmed that no one was taken to jail that night.
The State entered into evidence the “Consent To Search” form, signed by appellant,
which delineated appellant’s constitutional rights, specifically noting appellant’s right to
refuse to give consent and to revoke consent and stop the search at any time, and stating
affirmatively that permission was given “voluntarily and without threats, coercion or
promises from any agent of the City of Pine Bluff Police Department.”
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Mrs. Gonder testified in contradiction to the officer, stating that she essentially felt
bullied to return to the house with officers following her. She also said that she saw Officer
Whitfield push open their door and enter against her wishes, and also against her husband’s
wishes when he saw the officer coming inside. She recalled that she and her husband
repeatedly told the officer to leave, but he would not. She said the officer threatened that she
and the two men in the house would be going to jail, and their kids would be taken away, if
appellant did not sign a consent. She agreed that her husband signed the consent, but that he
was forced by the threats. Appellant’s testimony mirrored his wife’s.
Appellant argues on appeal that there were no exigent circumstances that would
permit entry and search of the house pursuant to Ark. R. Crim. P. 12.1, and that the consent
was obtained under duress.1 Therefore, appellant contends that the motion to suppress was
denied in error. We agree that Arkansas Rule of Criminal Procedure 12.1 would not be a
valid basis to uphold the search in this instance because there was no emergency relating to
bodily harm or destruction of evidence that would create a warrant exception. Indeed, the
State did not elect to argue this Rule as a basis to support the search. Instead, we focus on
the second argument asserted, which is whether the State carried its burden to demonstrate
1
Appellant does not argue on appeal that the initial entry into the doorway of the
house was constitutionally infirm. Instead, his argument focuses on the acquisition of
verbal and written consent inside the house. Therefore, we do not address or offer any
opinion on the legality of the initial entry into the house.
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that consent to search was freely and voluntarily given.
Appellant agrees that he gave both verbal and written consent to search, but he argues
that there is no corroborating evidence of the officer’s testimony about what led to the
consent being given. Because individuals have a high expectation of privacy in their homes,
our courts require voluntary consent absent other grounds to effectuate a warrantless search
of the home. See Payton v. New York, 445 U.S. 573 (1979). Indeed, physical intrusion into
the privacy of a person's residence absent a warrant is the primary evil that the Fourth
Amendment seeks to eradicate. See United States v. Miller, 933 F. Supp. 501 (M.D. N.C.
1996). He argues that his and his wife’s testimony demonstrate that they were bullied and
that appellant gave consent only after threats of incarceration and of taking the children from
the home. This argument focuses on credibility determinations that we are not at liberty
to disturb on appeal. Bogard v. State, __ Ark. App. __, __ S.W.3d __ (Nov. 3, 2004). The
validity of consent is a fact question determined by the totality of the circumstances.
Medlock v. State, 79 Ark. App. 447, 89 S.W.3d 357 (2002). Based upon the testimony
presented by the officer, which the trial court was entitled to believe, we cannot say that the
trial court’s denial of the motion to suppress was clearly erroneous.
Affirmed.
P ITTMAN, C.J., and B AKER, J., agree.
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