Savage v. State, CR-18-1027

• Decision Date: 13 November 2019
• Docket Number: No. CR-18-1027,CR-18-1027
• Citation: 2019 Ark. App. 532,590 S.W.3d 164
• Parties: Keith SAVAGE, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Court of Appeals

2019 Ark. App. 532

590 S.W.3d 164

Keith SAVAGE, Appellant

v.STATE of Arkansas, Appellee

No. CR-18-1027

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered: November 13, 2019

Hancock Law Firm, Little Rock, by: Alex R. Burgos, for appellant.

Leslie Rutledge, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.

BART F. VIRDEN, Judge

Keith Savage appeals the Yell County Circuit Court's decisions to deny his motion to enforce an agreement not to prosecute and to admit laboratory reports over his objection. We affirm.

I. Relevant Facts

On August 9, 2016, the prosecuting attorney for the the Yell County Circuit Court filed a felony information against Savage charging him with three counts of threatening a judicial officer, a class B felony. On March 2, 2017, Savage entered a guilty-plea statement and waived his right to a jury trial. The same day, Savage was placed on probation for a period of ninety-six months, fined $1000, and assessed $150 in costs.

The State filed the first petition to revoke Savage's probation on June 14, 2017, due to his failure to report for a scheduled office visit, failure to report a change of address, and evasion of supervision. On October 5, 2017, the prosecuting attorney nolle prossed the petition.

On November 28, 2017, the prosecution filed another petition to revoke the probated sentences based on Savage's failure to report, failure to report a change of address, evasion of supervision, failure to pay fees, and "numerous criminal federal charges." On January 4, 2018, Savage waived formal arraignment and pleaded not guilty.

On April 2, 2018, the prosecutor filed a motion for nolle prosequi. During the hearing, the circuit court clarified that the petition to revoke would be nolle prossed, "and there is going to be an agreement to Act 423, sanctioned by the probation officer" and that "as a part of this, Mr. Savage is waiving the request for a hearing on 423 to the circuit court?" Savage's attorney agreed that "as a condition of the non pros he is going to be sanctioned under 423 by probation, and he is waiving the hearing." The court order for nolle prosequi was entered the same day.

On April 24, 2018, the State refiled the petition to revoke Savage's probation. The only change to the petition was in the description of the "numerous criminal federal charges," which now set forth "[t]he defendant was included in a federal indictment for the violation of Title 21, United States Code, section 841(a)(1), and Title 21, United States, Code Section 841(b)(1)(A) [.]"

On July 5, 2018, Savage filed a motion to enforce the agreement and to dismiss the felony information. Savage contended that the State's April 24 refiling of the petition to revoke violated his due-process rights because the State offered the agreement not to prosecute, and in exchange, Savage agreed to subject himself to administrative sanctions under Act 423, and he waived his right to a revocation hearing; thus, he detrimentally relied on the agreement.¹ Savage also noted that on April 2, the State's main witness—a drug-task-force agent who would have provided testimony regarding the search of Savage's home and seizure of evidence that led to the federal charges—was unavailable. Savage alleged that the State "used trickery to obtain an unfair advantage[.]" The State responded that there was no agreement not to prosecute and that because Savage had never been sanctioned according to Act 423, he had not relied on any agreement to his detriment; thus, he could not show prejudice. The State contended that it exercised the option to refile pursuant to a "standard nolle pros." The State also requested a continuance and explained that a necessary witness—the same drug-task-force agent who had been unavailable on April 2—was again unavailable. The court granted the continuance to August 2.

At the August 2 hearing, Savage explained that on April 2 he was ready to proceed, but the State did not have the drug-task-force agent there to testify about the new federal charges against him. The new federal charges were stated as a ground for revocation, and so the State agreed to sanction Savage administratively under Act 423, and nolle pros the charges. As a part of the agreement, Savage waived his right to request a hearing. Savage asserted that he proved that there was an agreement and that he acted to his detriment in relying on the agreement; specifically, part of the agreement was that he would be committed to "jail days," and he suffered prejudice as a result because he gave up the right to call witnesses and cross-examine the State's witnesses. Savage contended that the State reneged on the agreement when it refiled the petition to revoke less than a month later.

The State responded that Savage did not offer evidence that there was an agreement, that he acted to his detriment, or that he suffered prejudice by the State's actions. The State contended that there was no agreement between the parties that Savage would forgo his right to a bench trial and that a nolle prosequi was not an unconditional dismissal of the charges. The State contended that when a defendant accepts a plea offer, "you go through those and make sure they understand what they are doing. If this had been reversed, and we were trying to enforce this as an agreement, he's not waived any constitutional rights. He stands before the court today just like it was his first time. He's given up nothing." The State asserted that "the agreement they want enforced, nobody can seem to agree what it was, because it was not written down. If he wanted to put something on the record to make sure that he waived the rights and he was prejudiced, then that was their opportunity to do that in front of you. But that is not what we agreed to do because there was no agreement." The State summarized that "there was a determination made that we couldn't go forward at the time with one of the issues before this court" and as a result, the State nolle prossed the petition to revoke to refile later.

Savage responded that he gave up the right to appeal the sanctions, which is set forth in Act 423, and that "whatever probation came down with, be it one day or 180 days, he was going to take and not appeal. He had an absolute right to do so, and he gave up that right." Savage asserted that "this simply turned into a continuance for the State to directly refile the exact same petition."

The court determined that there was no "meeting of the minds" between Savage and the State. The court explained that "when Act 423 came, it threw everybody into a state of flux because there it is and you got to start using it, and nobody knew how to use it." After reviewing Act 423, the court concluded that

for Act 423 to apply, if it's somebody that was on probation prior to [October 1, 2018] we then would have some discretion on whether they wanted to use the Act or not. However, the prosecuting attorney was given the ability to direct file under three circumstances: (1) if there are new charges, new allegations; (2) if the individual is special designation, a special purpose. And that is very broad because that it was the prosecutors to say in this particular individual has six other felonies which included violence. So that gave the prosecutors the ability to kind of tailor the special designation element in order to direct file. Third, if they became a fugitive. On each of these petitions, the one that was filed June 14, 2017, that was dismissed for compliance. That one that was filed November 28. 2017, and the other that was filed on April 24, 2018. All of those have the designation of "whereabouts unknown" because it was in there that he was not reporting. He was not at the residence he was supposed to be at, which makes the individual a fugitive, and provides the State to direct file. When they have the ability to direct file, that means he did not have the privilege, so to speak, of Act 43.

The court denied Savage's motion, determining that Act 423 did not apply under these circumstances and that Savage had not acted to his detriment.

The hearing proceeded, and Savage's probation officer, Logan Ferguson, testified that on October 30, 2017—about a month after the federal indictment involving Savage arrived in his office—he visited Savage's listed residence and found that he no longer lived there. Ferguson testified that when Savage did not show for his November 3 appointment, he filed the petition to revoke Savage's probation based on his failure to pay fees, incurring new federal criminal charges, and absconding and evading supervision. Later, Ferguson learned that Savage had been living in the same apartment complex, and due to construction at the complex, he was living in a different apartment. Ferguson explained that Savage had turned himself in on the new federal charges, and since then, Savage had been in compliance with his probationary terms and was living at "Freedom House" in Russellville, which is a drug-and-alcohol rehabilitation facility. Ferguson testified that about a week after the petition to revoke had been nolle prossed, the prosecutor's office called and asked him to refile the petition.

Michael Evans, a drug-task-force officer for the Russellville Police Department who had been previously unavailable to testify, testified that on May 5, 2017, Savage had been arrested following the search of 1000 South Glenwood Road in Russellville, during which police found illegal drugs. Evans explained that Savage told him that he had procured large quantities of methamphetamine from other people also included in the indictment. Savage objected to Evans's testimony, asserting that he did not have personal knowledge of the search as a member of the "perimeter team" and that he did not have personal knowledge of Savage's statement in the patrol car. The State asserted that the rules were relaxed in probation hearings, and Evans's testimony was proper because he was a member of the search...