Caldwell v. State
| Decision Date | 28 March 1988 |
| Docket Number | No. CR,CR |
| Citation | 747 S.W.2d 99,295 Ark. 149 |
| Parties | John Michael CALDWELL, Appellant, v. STATE of Arkansas, Appellee. 87-201. |
| Court | Arkansas Supreme Court |
Shermer & Walker, Russellville, for appellant.
Joseph V. Svoboda, Asst. Atty. Gen., Little Rock, for appellee.
The appellant, John Michael Caldwell, was convicted of second degree battery for shooting James Roberts. He contends he was entitled to the benefit of a plea bargain from which the state withdrew before trial. He argues he was constitutionally entitled to be indicted rather than proceeded against by information and that the information was invalid because it did not contain the words, "against the peace and dignity of the State of Arkansas" in the right place. He also contends the court erred in not requiring the state to furnish him a transcription of a statement he gave before trial. We hold that, because Caldwell has not demonstrated that he relied on the plea bargain in any way, it was not error to permit the state to withdraw from it. We hold that the constitution is not violated by the information procedure, and that no error occurred with respect to the arrangement of the words of the information. We also hold no prejudice resulted from the failure to furnish the transcription. The conviction is affirmed.
Toward the end of his term of office, the prosecutor offered to recommend a sentence to five years probation in exchange for Caldwell's plea of guilty to first degree battery and aggravated assault. Caldwell signed the agreement. A new prosecutor took office before Caldwell entered a plea, and the new prosecutor refused to honor the agreement. Caldwell moved to require that the agreement be enforced. The motion was denied. The aggravated assault charge was dismissed, and, upon a plea of not guilty, Caldwell was convicted of second degree battery, a lesser offense included in first degree battery.
As authority for his contention that he was entitled to specific performance of the agreement, Caldwell cites our opinion in Hall v. State, 285 Ark. 38, 684 S.W.2d 261 (1985), in which we said that if the state does not keep a plea bargain, an accused may withdraw his guilty plea, citing Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), and Mabry v Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). These cases involved alleged breaches of plea bargains which allegedly occurred after a guilty plea had been entered. To be distinguished are cases like this one where no plea has been entered at the time of the withdrawal.
We have no case squarely in point. The cases from other jurisdictions are discussed in Annot., Right of Prosecutor to Withdraw from Plea Bargain Prior to Entry of Plea, 16 A.L.R. 4th 1089 (1982). The majority of jurisdictions which have considered the issue hold that, if the defendant has not pleaded or detrimentally relied upon the agreement, the state is free to withdraw. See, e.g., State v. Edwards, 279 N.W.2d 9 (Iowa 1979), and Wynn v. State, 22 Md.App. 165, 322 A.2d 564 (1974), in both of which withdrawal was allowed, before prejudicial reliance had occurred, where a second prosecutor refused to honor an agreement entered by a predecessor.
Caldwell argues that he relied to his detriment on the agreement, but the closest he comes to saying he was prejudiced is the general statement that upon entry of the agreement he stopped preparing his defense. He makes no specific statement that any preparations were foregone or how his defense may have suffered. We find no facts showing detrimental reliance.
Caldwell also argues that it is fundamentally unfair to allow the state to renege, whether or not he has relied. Some courts might agree. See Cooper v. United States, 594 F.2d 12 (4th Cir.1979); Ex parte Yarber, 437 So.2d 1330 (Ala.1983). We disagree for two reasons. First, if the trial court chooses not to accept the plea bargain, it is of no effect. Ark.R.Crim.P. 25.3; Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). The parties have no power to bind the court, and thus it is illusory to say the state is bound by such an agreement before it is consummated by the acceptance of a guilty plea by the court. Second, this court places substance over form, Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986), and if there is no demonstrable prejudice resulting from the withdrawal we fail to see how it is unfair to allow it.
We do not mean to suggest by this discussion that if an accused has detrimentally relied to any degree or in any manner upon a plea bargain he may have specific performance of it prior to entering a plea based upon it. We will cross that bridge when we come to it. Withdrawal under those circumstances may affect only the evidence available to the prosecution. Here we hold only that absent a showing of acceptance of a plea of guilty based upon agreement and absent a showing of other detrimental reliance upon the agreement, Caldwell was not entitled to enforcement of it.
In many cases, including Davis v. State, 246 Ark. 838, 440 S.W.2d 244 (1969), cert. denied, 403 U.S. 954, 91 S.Ct. 2273, 29 L.Ed.2d 865 (1971), and Penton v. State, 194 Ark. 503, 109 S.W.2d 131 (1937), we have upheld Ark. Const., amend. 21, which permits criminal charges to be made by information, against challenges based on the Fifth and Fourteenth Amendments to the United States Constitution. There is no need to reconsider those cases here.
Arkansas Const., art. 7, § 49, provides, in part, "Indictments shall conclude: 'Against the peace and dignity of the State of Arkansas.' " This is known as the contra pacem clause. In Williams v. State, 47 Ark. 230, 1 S.W. 149 (1886); State v. Hazle, 20 Ark. 156 (1859); and State v. Cadle, 19 Ark. 613 (1858), we held that each count of an indictment must contain the clause. Our reason was that each count of an indictment must stand on its own.
Count I of the information against Caldwell stated the battery offense and did not contain the clause. It was, however, contained in the information after the aggravated assault count, which was count II. The clause was not included in the body of either count...
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