State v. Johnson

• Decision Date: 18 February 2010
• Docket Number: No. CR 09–644.,CR 09–644.
• Citation: 2010 Ark. 77,360 S.W.3d 104
• Parties: STATE of Arkansas, Appellant, v. Jason Michael JOHNSON, Appellee.
• Court: Arkansas Supreme Court

2010 Ark. 77

360 S.W.3d 104

STATE of Arkansas, Appellant,

v.Jason Michael JOHNSON, Appellee.

No. CR 09–644.

Supreme Court of Arkansas.

Feb. 18, 2010.

Dustin McDaniel, Att'y Gen., by: Deborah Nolan Gore, Ass't Att'y Gen., for appellant.

Lingle Law Firm, by: James G. Lingle, Rogers, for appellee.

ELANA CUNNINGHAM WILLS, Justice.

The State of Arkansas brings this appeal from an order of the Benton County Circuit Court dismissing the charges against appellee Jason Johnson. The circuit court agreed with Johnson that he had complied with and detrimentally relied on the terms of an agreement with the prosecutor to divert his charges in exchange for obtaining certain results on a psychiatric evaluation. In doing so, the court rejected the State's argument that specific performance of the agreement was not an appropriate remedy. The State's appeal is taken pursuant to Ark. R.App. P.-Crim. 3.

Johnson was arrested on October 18, 2007, for violating Arkansas Code Annotated section 5–27–602 (Repl.2006), which makes it a felony to knowingly distribute, possess, or view matter depicting sexually explicit conduct involving a child. Before a felony information was filed, the deputy prosecutor, Mike Armstrong, made an offer to Johnson that, if Johnson would obtain a mental evaluation and the results showed that Johnson did not have characteristics of a pedophile, the State would “divert” the case. ¹

At his own expense of $300.00, Johnson underwent a psychiatric evaluation with Dr. Robin Ross on January 24, 2008. Dr. Ross's report examined Johnson's personal, psychiatric, medical, and social histories, as well as his legal history, which indicated that he had never been in legal trouble before the current charges. Based on her evaluation, Dr. Ross concluded that Johnson did not give a history that would be consistent with the traits of a pedophile.

Despite this evaluation, and before reviewing its results, Armstrong informed Johnson that the offer was being revoked. Armstrong asserted that, at the time the offer had been made, he had not reviewed the material allegedly on Johnson's computer and would not have made the offer if he had known the nature of the material. A felony information was filed on February 13, 2008, charging Johnson with knowingly possessing and viewing video images that depicted children engaging in sexually explicit conduct.

On October 17, 2008, Johnson filed a motion to enforce the agreement the prosecution had earlier offered.² In his motion and brief in support thereof, Johnson asserted that the prosecutor's agreement to divert his case should be specifically enforced because he detrimentally relied on the prosecutor's promise. The State responded that the circuit court should not order specific enforcement of a preliminary offer because the court had never accepted the offer, and Johnson had failed to demonstrate that he had been prejudiced by the withdrawal of the offer. The State noted that, even if the court found that the statements made by Johnson to Dr. Ross were prejudicial, the proper remedy would be to exclude the statements from the trial.

The circuit court held a hearing on Johnson's motion to enforce the agreement on November 14, 2008, at which time the parties stipulated to the above facts. The court took the motion under advisement, and the parties filed supplemental briefs on the issue of enforcing the agreement. After hearing arguments from the State and the defense at a later hearing on February 4, 2009, the circuit court, relying on Hammers v. State, 261 Ark. 585, 550 S.W.2d 432 (1977), concluded that “[a] deal was made, and the defendant followed through,” and that therefore this was “a case in which the term ‘equitable relief’ should be applied, and in my opinion ... the defendant is deserving of equitable relief. He made a deal with the prosecutor, fulfilled his terms of the deal, and now the prosecutor wants to renege after acceptance and performance.”

The court further found that Johnson had detrimentally relied on the State's offer: “I'm finding $300.00, going in for an evaluation, submitting the evaluation and everything he said to the [psychiatrist], a complete waiver of his Fifth Amendment rights, that's all detrimental.” The court concluded, “The prosecutor made a deal, and they're going to live up to it. Now, that is my ruling, and I am going to grant the equitable relief by dismissing these charges.” ³

The circuit court entered an order of dismissal on March 17, 2009, finding and ordering that Johnson's “motion to specifically enforce the offer of the state is granted because the defendant detrimentally relied on the State's offer.” The State filed a timely notice of appeal on April 15, 2009.

Before addressing the merits of this case, the court must first determine whether this issue is properly before us under Rule 3 of the Arkansas Rules of Appellate Procedure–Criminal. The principles governing our acceptance of appeals by the State in criminal cases are well established: the State's ability to appeal is not a matter of right; rather, it is limited to those cases described under Ark. R.App. P.-Crim. 3; State v. Crawford, 373 Ark. 95, 281 S.W.3d 736 (2008); State v. Joslin, 364 Ark. 545, 222 S.W.3d 168 (2006). Under Rule 3, we accept appeals by the State when our holding would establish important precedent or would be important to the correct and uniform administration of the criminal law. See State v. Joslin, supra. We have only taken appeals which are narrow in scope and involve the interpretation of the law. State v. Warren, 345 Ark. 508, 49 S.W.3d 103 (2001); State v. Banks, 322 Ark. 344, 345, 909 S.W.2d 634, 635 (1995).

This case concerns the authority of the prosecuting attorney to withdraw an offer—in this case, an offer of diversion, although in other cases it could conceivably be an offer of dismissal—prior to the filing of charges, but after the defendant has acted upon the offer. The State frames the issue as follows:

whether a trial court may compel the State to adhere to the terms of an agreement with a defendant which the evidence subsequently reveals is unwise—and ultimately to dismiss the case with prejudice—even though the defendant has not entered a plea in reliance on the agreement and cannot demonstrate that he otherwise relied on the agreement in a manner which prejudiced his right to a fair trial, and any reliance could be remedied by an order limiting the use of evidence by the State.

Johnson disagrees, asserting that the law in this area has been “settled” since this court's 1977 decision in Hammers v. State, 261 Ark. 585, 550 S.W.2d 432 (1977). Therefore, he contends, there is “no reason for the court to take this case ‘to maintain uniformity throughout the State.’ ” However, as is discussed below, Hammers, while instructive, is not exactly on point; in fact, there do not seem to be any Arkansas cases that are precisely on point, as evidenced by the fact that both parties cite numerous cases from other jurisdictions. The State frames the issue in this case as whether Johnson detrimentally relied on the offer of diversion; Johnson contends on appeal that detrimental reliance is irrelevant and is not the appropriate test. Thus, we must determine whether detrimental reliance is required for enforcing agreements such as the one in this case. Assuming, moreover, that detrimental reliance is required, there are no Arkansas cases defining that term in this context. Accordingly, the correct and uniform administration of the criminal law requires our review of this case.

Our standard of review in this case has two components: We review the trial court's findings of fact for clear error, giving due weight to inferences drawn by the circuit court, and reverse only if the ruling is clearly erroneous or against the preponderance of the evidence. State v. Kelley, 362 Ark. 636, 210 S.W.3d 93 (2005); State v. Howard, 341 Ark. 640, 645, 19 S.W.3d 4, 8 (2000). Questions of law, however, are reviewed de novo. Scissom v. State, 367 Ark. 368, 240 S.W.3d 100 (2006) (citing Brown v. Pine Bluff Nursing Home, 359 Ark. 471, 199 S.W.3d 45 (2004)).

In its sole point on appeal, the State argues that the circuit court erred by granting Johnson's motion to specifically enforce the agreement because there was no detrimental reliance on the agreement on Johnson's part. Citing Caldwell v. State, 295 Ark. 149, 747 S.W.2d 99 (1988), the State urges that specific performance is not an appropriate remedy when Johnson failed to show that he detrimentally relied on the State's offer. The State goes on to cite numerous cases from other jurisdictions in support of its contention that a party, including the State, may withdraw from a plea bargain prior to acceptance of the plea by the court or detrimental reliance on the part of the defendant.

In Caldwell v. State, supra, the appellant was convicted of second-degree battery. On appeal, he argued that he was entitled to the benefit of a plea bargain made after charges were filed but from which the state withdrew prior to trial. The offer, extended by a prosecuting attorney toward the end of his term in office, was a recommendation for a sentence of five years' probation in exchange for a plea of guilty to first-degree battery and aggravated assault. A new prosecutor took office before Caldwell could enter a plea, and that prosecutor refused to honor the earlier offer. Caldwell's motion to enforce the agreement was denied, and he proceeded to trial and was convicted of second-degree battery. Caldwell, 295 Ark. at 150–51, 747 S.W.2d at 100.

On appeal, Caldwell argued that he was entitled to specific performance of the plea agreement. This court rejected his argument, noting that the majority of jurisdictions to consider a similar question had concluded that “if the defendant has not pleaded or detrimentally relied upon the agreement, the state is free to withdraw.” Id. at 151, 747 S.W.2d at 101 (citing State v....