Bradford v. State

• Decision Date: 09 January 2003
• Docket Number: No. CR 02-570.,CR 02-570.
• Parties: Rex E. BRADFORD v. STATE of Arkansas.
• Court: Arkansas Supreme Court

Page 904

94 S.W.3d 904

351 Ark. 394

Rex E. BRADFORD v. STATE of Arkansas.

No. CR 02-570.

Supreme Court of Arkansas.

January 9, 2003.

Etoch & Halbert Law Firm, by: Louis A. Etoch, Helena, for appellant.

Mark Pryor, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.

ROBERT L. BROWN, Justice.

This appeal is brought by the appellant, Rex Bradford, from a judgment and commitment order sentencing him to three five-year sentences to be served consecutively. Bradford asserts that the trial court erroneously sentenced him, sua sponte, to consecutive sentences in violation of a plea agreement and an earlier pronouncement of sentence in open court. Because Bradford was not advised by the trial court of his right to affirm or withdraw his guilty plea in open court, which violated Ark. R.Crim. P. 25.3(b), we reverse and remand.

On February 25, 2002, Bradford entered a plea of guilty to three separate felonies pursuant to a plea agreement negotiated with the prosecuting attorney. The felonies included two counts of possession of methamphetamine and one count of possessing and manufacturing marijuana. During the hearing before the trial court on that date, Bradford stated that he signed the plea agreement submitted to the court, that he understood he could receive anywhere from three to thirty years in prison for the charged offenses, that he had a right to a trial by jury, that he had a right to confront witnesses, and that he had the right to appeal the trial court's decision, if he proceeded to trial. He further stated his intention to waive these constitutional rights and to plead guilty. The court then accepted the plea agreement and made it part of the record. Bradford next stated that he had discussed the minimum and maximum penalties with his attorney and that he was entering his guilty plea freely and voluntarily. He also stated that he understood that the State's recommendation was not binding on the court and that the actual disposition by the trial court could differ from his plea agreement with the prosecutor.

The trial court found that in all three cases, Bradford had freely and voluntarily waived his right to a jury trial and entered a plea of guilty. He further found that there was a factual basis for his plea. The court adjudged Bradford guilty on all counts and questioned the parties as to sentencing:

THE COURT: ... What is the State's recommendation?

THE STATE: Your Honor, that on each of the charges, the defendant is sentenced to five years in the Arkansas Department of Correction. Those sentences are to run concurrently with one another.

THE COURT: Is that your recommendation, Mr. Etoch, of what the recommendation would be?

DEFENSE COUNSEL: Yes, sir.

. . . .

THE COURT: What is the recommendation regarding the sentences being concurrent or consecutive?

THE STATE: Concurrent.

The trial court then pronounced judgment, which was five years on each count, to be served concurrently.

Eight days later, on March 5, 2002, the trial court issued an order sua sponte directing Bradford to appear in open court for resentencing. On March 7, 2002, the trial court held the resentencing hearing. A conversation in chambers regarding this matter apparently occurred with counsel and the trial court before the hearing commenced, but it was not transcribed. At the hearing, Bradford requested due process, including notice and an opportunity to respond. The prosecutor answered that the trial court could not resentence a defendant after execution of the judgment, which is defined as a formal entry of judgment and commitment or actual physical placement of the defendant in the Department of Correction. The prosecutor took the position that neither event had occurred in this case. The trial court agreed.

Various witnesses were then called. The court heard from Freddie Houston, who had compiled a pre-sentence report on Bradford and found Bradford's presumptive sentence to be thirty months. Bradford attempted to call the prosecuting attorney who had negotiated the plea agreement, but he was out of town. The trial court ruled that Bradford could have subpoenaed the prosecuting attorney and denied Bradford's motion for a continuance on that basis. Melanie Bradford next took the stand on behalf of her husband. She testified that he was a good husband, father, and worker, and that it would be a hardship on the family for him to go to prison. The State, on rebuttal, called Dale Arnold, a Criminal Narcotics Investigator for the Arkansas State Police, who testified to the events stemming from a search warrant executed on Bradford's home on

October 25, 2001, which led to the drug arrests.

In its ensuing ruling and sentence, the trial court noted that the execution of sentence had not commenced, that Bradford had remained at liberty, and that its judgment and commitment order had not been entered. The court concluded that it could revisit the previous sentence pronounced in open court. The court sentenced Bradford to five years on each of the three charges, to be served consecutively. On request by Bradford, the court cited its reason for departure from the recommended thirty months as "based on the record produced today in this hearing in its entirety." The trial court granted Bradford's request for an appeal bond, and Bradford now brings this appeal.

Bradford argues, as his primary point, that he is entitled to rely upon the sentence he received in open court on February 25, 2002. He cites Ark.Code Ann. § 16-65-121 (Supp.2001), in support of his argument, which reads: "All judgments, orders, and decrees rendered in open court by any court of record in the State of Arkansas are effective as to all parties of record from the date rendered and not from the date of entry of record." He further contends that it "violates common principles of fundamental fairness and due process" to permit the trial court to come back ten days later and change its mind. Because the sentence pronounced on February 25, 2002, was in effect, Bradford maintains that the trial court lacked authority to change the sentences from running concurrently to consecutively. Bradford admits that he openly acknowledged that his disposition of sentence could differ from that negotiated with the prosecutor, but he claims that he was never told that after being sentenced in open court, "the judge could change his mind at a later time and re-sentence him to a greater amount of time."

In the alternative, Bradford urges that he should have been given the chance to withdraw his plea if the trial court was not going to sentence him in accordance with the negotiated plea.

The State contends that Bradford is barred from appealing this matter because he pled guilty, and this court has no authority to hear this appeal. The State claims that this appeal does not fall within any of the acknowledged exceptions to the general rule precluding appeals from guilty pleas. Moreover, the State asserts that the trial court did have authority to change Bradford's sentence before the entry of the judgment and commitment order. The State further emphasizes that the trial court gave notice of its intent to resentence him and held a hearing on the matter. Had Bradford wanted to withdraw his guilty plea, according to the State, he could have motioned the court accordingly, but he failed to do that.

The State is correct that Arkansas Rule of Appellate Procedure — Criminal 1(a) reads that "[e]xcept as provided in by ARCrP 24.3(b) there shall be no appeal from a plea of guilty[.]"¹ Ark. R. App. P. — Crim. 1(a). This court has endorsed that principle on several occasions. See, e.g., Reeves v. State, 339 Ark. 304, 5 S.W.3d 41 (1999). However, this court has also approved two additional exceptions to this rule, as outlined in our decision in Reeves v. State, supra. Those exceptions are: (1) an appeal relating to an issue involving testimony or evidence which occurred during a sentencing trial before a jury following a guilty plea; and (2) an appeal from a postjudgment motion to amend an incorrect or illegal sentence following a guilty plea. See id.

This court addressed a situation similar to the matter at hand in State v. Sherman, 303 Ark. 284, 796 S.W.2d 339 (1990). In Sherman, the defendant entered a guilty plea, which was accepted by the trial judge, and he was informed that his offense carried a possible sentence of three to ten years in prison. After accepting his plea, the trial court delayed imposition of sentence. Upon receiving the pre-sentence investigation report, the trial court decided, sun sponte, to sentence Sherman to thirty years as a habitual offender, even though the appellant was not charged as a habitual offender and was not informed at the plea hearing that prior convictions would be used to enhance his sentence. On appeal, the court of appeals modified the sentence to ten years. On review, this court dismissed the appeal altogether for lack of jurisdiction and said:

The appellant challenges the validity of the sentence he received as a direct result of his guilty plea. Therefore, the appeal is from a sentencing procedure which was an integral part of the acceptance of the appellant's guilty plea. The appeal must be dismissed.

The appellant is not left without a remedy. A motion to correct an illegal sentence may be filed subsequent to the dismissal of this appeal. Ark.Code Arm. § 16-90-111(b) (Supp.1989). In the alternative, the appellant may seek relief under A.R. Cr. P. Rule 37. See Brown v. State, 290 Ark. 289, 718 S.W.2d 937 (1986) (motion to withdraw guilty plea filed after sentencing may be treated as a Rule 37 petition). Even though Rule 37 was abolished in Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989), the appellant was sentenced while the rule was still in effect.

State v. Sherman, 303 Ark. at 286-87, 796 S.W.2d at 340.

Subsequent to State v. Sherman, supra, this court decided Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). I...