Michael Justin Drake v. State of Arkansas
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ARKANSAS COURT OF APPEALS
DIVISION II
No. CACR07-1338
Opinion Delivered
MICHAEL JUSTIN DRAKE,
APPELLANT
S EPTEMBER 3, 2008
APPEAL FROM THE DREW
COUNTY CIRCUIT COURT,
[NO. CR-2006-155-3-B]
V.
HONORABLE ROBERT BYNUM
GIBSON JR., JUDGE,
STATE OF ARKANSAS,
APPELLEE
AFFIRMED
SAM BIRD, Judge
1.
CRIMINAL PROCEDURE – CONSTRUCTION OF RULE 26.1(a) – NO ABSOLUTE RIGHT TO
WITHDRAW GUILTY PLEA.– Arkansas Rule of Criminal Procedure 26.1(a) includes no
requirement that the circuit court accept a guilty or nolo contendere plea by express
words, and the appellate court will not read language into a statute or a rule that is not
included in it; while the circuit court here did not explicitly state at appellant’s plea
hearing that it accepted appellant’s guilty plea, it was implicit in the colloquy
between the court and appellant that the court did so; appellant had no absolute right
to withdraw his plea under Arkansas Rule of Criminal Procedure 26.1(a) because the
circuit court had in fact accepted it.
2.
SENTENCING – WITHDRAWAL OF GUILTY PLEA TO CORRECT A MANIFEST INJUSTICE.–
Appellant presented no convincing argument that was entitled to withdraw his guilty
plea to prevent manifest injustice.
Appeal from Drew Circuit Court; Robert Bynum Gibson, Jr., Judge; affirmed.
Robert Cortinez, Sr., for appellant.
Dustin McDaniel, Att’y Gen., by: Farhan Khan, Ass’t Att’y Gen., for appellee.
Michael Justin Drake appeals the Drew County Circuit Court’s denial of his motion
to withdraw his plea of guilty to three felonies. He contends that the circuit court erred as
a matter of law and abused its discretion by refusing to allow him to withdraw the guilty plea.
Drake argues that he had an absolute right to withdraw the plea because it had not been
accepted by the trial court. He claims alternatively that, even if the court did accept the plea,
he was entitled to withdraw it to prevent a manifest injustice. We disagree with both
arguments, and we affirm the order of the circuit court.
Drake and codefendant Justin Smith were jointly charged with residential burglary,
kidnapping, attempted capital murder, aggravated assault, and felon in possession of a firearm.
The State offered Drake a plea bargain, contingent upon truthful testimony by Drake and a
second witness, in which the State would nolle pros the assault and firearm charges against
him, reduce the attempted capital murder to attempted first-degree murder, and recommend
concurrent sentences for the charges as well as ten years’ suspended imposition of sentence.
The prosecutor proposed taking Drake’s guilty plea in open court but withholding sentencing
until Smith was tried or entered a plea.
Drake’s plea hearing took place on March 19, 2007. He pled guilty to residential
burglary, kidnapping, and attempted first-degree murder, and the State recommended
concurrent prison terms of fourteen years in exchange for testimony against Smith. On April
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4 Drake filed a motion to withdraw his previous guilty plea. On April 5 he invoked his right
against self-incrimination, and he declined to testify at Smith’s trial; the jury acquitted Smith
on all charges. The circuit court denied Drake’s motion to withdraw his guilty plea at a
hearing later in April, and in June he was sentenced as a habitual offender to consecutive
sentences totaling forty years’ imprisonment. His appeal arises from the judgment and
commitment order entered on June 18, 2007.
.
Rule 26.1(a) of the Arkansas Rules of Criminal Procedure reads as follows:
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.1
Drake points to the provision of Rule 26.1(a) that a defendant may withdraw a guilty
plea as a matter of right before it has been “accepted by the court.” He argues that the phrase
requires the circuit court to state on the record in unequivocal terms the court’s acceptance
of the plea. Noting the absence of “express words” by which the court accepted his plea or
1
The Reporter’s Notes to Rule 26.1 explain changes made to paragraph (a) in 1998 to
clarify, in part, when a plea could be withdrawn under the rule:
It now provides that prior to acceptance of the plea by the court, the defendant may
withdraw his or her plea as a matter of right. After acceptance and before entry of
judgment, the court in its discretion may allow a plea withdrawal upon proof that it is
necessary to correct a manifest injustice. After entry of the written judgment, the plea may
not be withdrawn under this rule. . . .
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found him guilty, he asserts “silent acquiescence” was not enough to show acceptance. He
submits, as an issue of first impression, that the rule requires a trial court to indicate acceptance
of the plea by affirmative action.
Drake concedes that he found no authority other than rules of construction to support
his proposition. The first rule in considering the meaning and effect of a statute or rule is to
construe it just as it reads, giving words their ordinary and usually accepted meaning in
common language. Aikens v. State, 368 Ark. 641, 249 S.W.3d 788 (2007). Court rules are
construed by the same means and canons of construction used in statutory interpretation.
Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002).
In Folk v. State, 96 Ark. App. 73, 238 S.W.3d 640 (2006), a case involving checkkiting charges, the appellant contended that he had the absolute right to withdraw his nocontest plea under Rule 26.1(a) because it was unclear whether the trial court had accepted
the plea. The public defender and the prosecutor announced in open court a negotiated plea
bargain under which Folk would quickly make restitution to the bank and would serve a fiveyear term of imprisonment. Despite discussion about waiting a week to accept the plea so
that restitution could be paid first, the trial judge said that he would “like to consummate it
today.” 96 Ark. App. at 74, 238 S.W.3d at 641. The prosecutor asked the court to “let
[Folk] plead guilty and sentence him when we get the money,” and the public defender said
“we can withdraw our guilty plea” should the court not accept the State’s recommendation.
Id. Folk signed a no-contest plea statement acknowledging that the court was not required
to accept the plea or the recommended sentence, and the case was set for sentencing. He
attempted to withdraw his plea at a review hearing a month later, and his attorney informed
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the court that Folk’s sister had been unable to garner enough funds for full restitution. The
judge reminded Folk that the case was set for sentencing because he had entered a plea of no
contest upon which the court “made a finding that you were guilty.” 96 Ark. App. at 75, 238
S.W.3d at 641.
This court held on appeal that Folk had no absolute right to withdraw his plea because
it was in fact accepted at the first hearing. Reviewing the parties’ colloquy at that hearing and
Folk’s subsequent attempt to withdraw his plea, we found that the trial judge “indicated
acceptance of the no-contest plea, commenting that he wanted appellant to promptly pay the
restitution, which was the compelling interest argued by the State.” Id. We rejected Folk’s
alternate argument that the trial court abused its discretion in failing to permit withdrawal of
his plea because he did not receive the benefit of his bargain. Citing the inherent unfairness
that would result if only one party were bound to a bargain, we held that no “manifest
injustice” occurred when Folk received a sentence harsher than the negotiated one because
of his failure to pay restitution within the time restrictions. 96 Ark. App. at 77, 238 S.W.3d
at 642.
Absolute Right to Withdraw a Guilty Plea
The record of the plea hearing shows that Drake responded affirmatively when the
court inquired if the signature on the guilty-plea agreement was his, if he understood his plea,
and if he had reviewed it with his attorney. He answered yes when the court asked if he
understood the State’s agreement for deferred sentencing until after his testimony in the
companion case, the State’s recommendation for fourteen years’ actual imprisonment and
additional suspended imposition of sentence subject to Drake’s truthful testimony in the
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upcoming trial of his alleged accomplice, and the court’s being “in no way” bound by the
recommended sentence despite the court’s recognition of the State’s recommendation. Drake
affirmed his understanding that the State made its recommendation in order to secure what
it believed to be truthful and favorable testimony in its case against his accomplice. He also
affirmed his understanding that he was giving up his rights to remain silent, to have a jury
trial, to be presumed innocent until proven guilty beyond a reasonable doubt, to have his
lawyer cross-examine witnesses against him, to present his own witnesses, and to testify in his
own defense if desired. Under further questioning by the court, he said that he had not been
threatened or pressured to plead guilty, that no promises had been made about receiving the
prosecutor’s recommended sentence, that he knew the court was not bound by the
recommendation, and that he had not relied upon any statement or promise about release
dates from prison, probation, or parole eligibility. Then he answered more questions and pled
“guilty” to the charges of attempted first-degree murder, residential burglary, and kidnapping.
After Drake related to the court his participation in the events that had led to the charges, the
court announced that the record was closed.
Drake’s subsequent motion to withdraw his guilty plea was taken up by the circuit
court at his sentencing hearing. His attorney argued that the record was unclear as to whether
or not the court had in fact accepted the negotiated plea and the guilty plea. The State
responded that “the court assented to the guilty plea, accepted the guilty plea. There’s no
magic words needed [that] the court has to incant in order to accept a plea.”
In denying Drake’s motion to withdraw the guilty plea, the court stated:
The Court’s words stand for themselves. I allowed this defendant to
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plead guilty in exchange for a recommendation that the State was going to
make, provided that the defendant testify reasonably consistently with what he
told the Court happened. I made it clear to the defendant and defense counsel that
I would accept the plea and let him plead guilty but would not be bound by . . .
the State’s recommendation, and so that’s what the Court did and that was clear
to everybody, including his very good, seasoned defense attorney. . . . You
can call it a negotiated plea, you can not call it a negotiated plea. It was a plea
of guilty . . . with the clear admonition that the Court would not be bound by
the State’s recommendation. Now, that’s the Court’s ruling.
(Emphasis added.)
While the circuit court did not explicitly state at Drake’s plea hearing that it accepted
the guilty plea, it is implicit in the colloquy between the court and appellant that the court
did so. The court did not allow Drake to enter his plea until questioning him extensively on
the record about his understanding of the plea, the circumstances under which it was given,
the rights he was relinquishing, and the fact that the court was not bound by the State’s
recommendation as to sentencing. The record remained open while Drake recited the factual
bases underlying the plea he had entered.
The court’s above-quoted remarks at the
subsequent sentencing hearing, although not necessary to our determination of this issue,
further clarify that the court had previously accepted appellant’s guilty plea.
While we think that an oral pronouncement by the circuit court of its acceptance of
appellant’s guilty plea would have been more in keeping with its obligation to hear the
evidence supporting a guilty plea and to make a judicial determination of whether the plea
should be accepted or rejected, Ark. R. Crim. P. 26.1(a) includes no requirement that the
court accept a guilty or nolo contendere plea by express words, and we will not read language
into a statute or a rule that is not included in it. See Potter v. City of Tontitown, 371 Ark. 200,
___ S.W.3d ___, (2007). We hold that Drake had no absolute right to withdraw his plea
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under Ark. R. Crim. P. 26.1(a) (2007) because the circuit court had in fact accepted it.
Withdrawal of Guilty Plea to Correct a Manifest Injustice
Drake argues that he should have been allowed to withdraw the plea for two reasons:
he did not receive the sentence concessions promised him, and his codefendant’s verdict of
not guilty means that Drake would serve time in prison for a crime that was not committed.
Drake’s argument that he did not receive the promised sentencing concession turns on the
court’s concurrence to the parties’ agreement, which did not occur. 2 See Ark. R. Crim. P.
26.1(b)(v) (stating that “[w]ithdrawal of a plea of guilty or nolo contendere shall be deemed
to be necessary to correct a manifest injustice if a defendant proves that . . . he or she did not
receive the . . . sentence concessions contemplated by a plea agreement in which the trial
court had indicated its concurrence”); Ark. R. Crim. P. 25.3(b) (addressing situations where
the judge decides that disposition should not include the charge or sentence concessions
contemplated by a plea agreement after “the judge has indicated his concurrence with a plea
agreement and the defendant has entered a plea of guilty or nolo contendere”). As for Drake’s
second argument, our supreme court has clearly stated that a co-defendant’s sentence is not
relevant to the appellant’s guilt, innocence, or punishment. Baxter v. State, 324 Ark. 440, 922
S.W.2d 682 (1996). Thus, Drake has presented no convincing argument that he was entitled
to withdraw his guilty plea to prevent manifest injustice in this case.
Affirmed.
2
Drake presents a one-sentence argument that the plea agreement placed upon him the
impossible burden of insuring a third party’s truthful testimony. We do not address this argument
because assignments of error, unsupported by convincing argument or pertinent authority, will
not be considered on appeal unless it is apparent without further research that they are well taken.
Wilson v. State, 25 Ark. App. 45, 752 S.W.2d 46 (1988).
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G LOVER and M ARSHALL, JJ., agree.
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