State v. Vasquez-Aerreola, VASQUEZ-AERREOL

• Decision Date: 17 March 1997
• Docket Number: No. CR,VASQUEZ-AERREOL,A,CR
• Citation: 940 S.W.2d 451,327 Ark. 617
• Parties: STATE of Arkansas, Appellant, v. Jose Luisppellee. 96-1277.
• Court: Arkansas Supreme Court

Page 451

940 S.W.2d 451

327 Ark. 617

STATE of Arkansas, Appellant, v. Jose Luis VASQUEZ-AERREOLA, Appellee.

No. CR 96-1277.

Supreme Court of Arkansas.

March 17, 1997.

Winston Bryant, Attorney General, J. Brent Standridge, Vada Berger, Assistant Attorneys General, Little Rock, for Appellant.

Charles L. Stutte, G. Chadd Mason, Fayetteville, for Appellee.

IMBER, Justice.

The trial court accepted the appellant's guilty plea to four charges over the State's objection, and dismissed the fifth charge contained in the information for lack of a factual basis. We reverse and remand, finding that the trial court lacked the authority to take this course of action.

On May 15, 1996, the Washington County prosecuting attorney filed a five-count felony information against the appellant, Jose Luis Vasquez-Aerreola. Counts one through four accused Vasquez-Aerreola of delivery of methamphetamine. These charges involved differing quantities of methamphetamine delivered on four different dates from February to April 1996. Count five accused Vasquez-Aerreola of engaging in a continuing criminal gang, organization, or enterprise in the first degree between January 1, 1996, and April 5, 1996. At his arraignment on May 17, Vasquez-Aerreola pled not guilty to all of the counts. The case was set for trial on August 14.

Subsequently, Vasquez-Aerreola filed a number of discovery motions. Among other things, he requested that the State furnish him with the recorded surveillance of the alleged drug transactions along with the names and addresses of the confidential informants that the State intended to call as witnesses. Vasquez-Aerreola also filed a bill of particulars requesting that the State identify with whom Vasquez-Aerreola occupied a supervisory position with respect to count five. On August 12, 1996, the trial court resolved most of the discovery issues during an in-chambers, off-the-record meeting with the parties. However, the parties went on the record for a hearing regarding the bill of particulars. The State's position was that it had already provided Vasquez-Aerreola with the identity of the parties with whom he acted as a supervisor for purposes of a continuing criminal enterprise. According to the State, three individuals were named in case number 96-178, what it referred to as the "companion case to [Vasquez-Aerreola's case] but not actually co-defendants." Additionally, the State identified two other individuals, Estephan Salas and Ignatio Valazquez aka "Nacho." The State also explained its open file policy with respect to discovery.

The trial court found that the State had fully complied with Vasquez-Aerreola's discovery requests with respect to count five. Additionally, it ordered that the State disclose all of its reports concerning undisclosed investigations of "Nacho's" activities by 4:00 p.m. that day. According to the judge, "assuming this information is in fact in any way useful in defending this case, [it] will provide an adequate time to review the information to be produced to the defendant." The trial court thus denied Vasquez-Aerreola's motion for a continuance.

On August 13, Vasquez-Aerreola filed a motion to dismiss the third and fourth counts. In count three, Vasquez-Aerreola was accused of delivering, at two separate times on April 8, a total of twenty-eight grams of methamphetamine. According to Vasquez-Aerreola's motion to dismiss, reports from the state crime laboratory indicated that the quantity of methamphetamine was only 23.724 grams. In count four, Vasquez-Aerreola was accused of delivery of over 400 grams of methamphetamine on April 15. According to Vasquez-Aerreola, the lab report showed that the actual quantity of methamphetamine was 377.3875 grams. Vasquez-Aerreola maintained that the quantities of methamphetamine involved in counts three and four were insufficient to trigger the statutory penalty enhancement, and thus should be dismissed.

On August 14, the day of trial, Vasquez-Aerreola decided to change his plea to guilty. The State objected to the guilty plea, and asserted that it had the right to a jury trial. The trial court proceeded to take testimony from Vasquez-Aerreola. He testified that he accepted methamphetamine from Jose Navarro and sold it to others on the dates charged. The trial court then asked defense counsel to summarize what went on in the four transactions.

Defense counsel explained that an individual known as "Gordo" had approached the Fayetteville Police Department and had offered to help them locate people who were selling drugs in exchange for money. According to defense counsel, Gordo arranged for Vasquez-Aerreola to sell the drugs to an undercover police officer. He also asserted that Vasquez-Aerreola actually received very little money for his part in the four transactions.

The trial court announced that it would accept Vasquez-Aerreola's plea to the four delivery counts. The State then renewed a motion it had made in chambers to amend the information to one count of delivery, combining all of the quantities of methamphetamine. The trial court denied this motion and dismissed count five for lack of a factual basis. The trial court then proceeded to sentence Vasquez-Aerreola to thirty years on each delivery count with fifteen years suspended on each one. The judgment and commitment order reflected that Vasquez-Aerreola had entered a plea "directly to the court."

On September 5, 1996, the State filed a notice of appeal. The trial court subsequently scheduled a hearing in the matter on September 10. At the September 10 hearing, the trial court informed the parties that it was treating the notice of appeal as a "motion to reconsider." The trial court then proceeded to recite the history of the case. The judge made a reference to the in-chambers hearing held on August 12. According to the trial court, Bruce Rhoades, the chief deputy prosecuting attorney, had engaged in a childish temper tantrum, and acted "in a wholly inappropriate fashion which certainly amounted to unprofessional conduct." The trial court then recollected that it had ruled, "in retrospect probably improperly," that the State had complied with its discovery obligations on count five. The trial court also recalled that the State had moved to amend the information to one count on the morning of trial when it learned that a smaller quantity of methamphetamine was involved.

The trial court then explained why it had dismissed count five. While conceding the prosecutor's "sole authority" to dismiss charges against defendants, the court nonetheless maintained that it was apparent there was no factual basis for the charge. The judge emphasized that he had heard the statements of Vasquez-Aerreola and defense counsel, and "other information" gathered from in-chambers conferences, and had concluded that there was no factual basis for the count. The court also understood that the State had abandoned count five when it had attempted to amend down its information, and that the State had not been "entirely forthcoming" in its discovery in retrospect. For all of these reasons, the trial court dismissed count five.

With regard to the jury trial issue, the trial court understood that the State had no statutory or constitutional right to a jury trial. The judge interpreted Ark.R.Crim.P. 31.1 to only apply in situations where there is "going to be a trial." The judge further noted that even if the State had a right to a jury trial, it had waived it through Rhoades's inappropriate conduct. In the trial court's opinion, the State had intentionally obfuscated critical information in the case.

As an example, the court referred to Rhoades's representation on August 12 that the State did not have the crime lab reports. Apparently, the trial court had independently contacted the crime lab and determined that the State had the reports by August 5. The court thus concluded that the State had intentionally committed discovery violations and had therefore waived any right to a jury trial it might have had. The court conceded that "some of this was not on the record and it should have been," but that it was important that this court "understand[ ] some of the history of this case."

On September 11, 1996, the State filed its second notice of appeal. The State argues that the trial court lacked the authority to accept Vasquez-Aerreola's plea over objection, and that it erred in dismissing count five.

1. Jurisdiction

The State brings its appeal pursuant to Ark.R.App.P.--Crim 3(b) (formerly codified at Ark.R.Crim.P. 36.10). Rule 3(c) requires the attorney general to inspect the trial record and certify that the correct and uniform administration of the criminal law requires review by this court. Pursuant to the rule, this court accepts appeals by the State when our holding will set a precedent that is important to the correct and uniform administration of Arkansas criminal law. See, e.g., State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993). We find that the issues presented in this case sufficiently implicate the correct and uniform administration of the criminal law so as to give this court jurisdiction under Rule 3.

Vasquez-Aerreola nonetheless challenges the State's ability to appeal from his guilty plea. He relies on State v. Pylant, 319 Ark. 34, 891 S.W.2d 28 (1994), where the State argued that it had an absolute right to a trial by jury in criminal cases. This court refused to reach the merits of this question, holding that the appeal was procedurally flawed.

In Pylant the appellant pled guilty to three counts of delivery of a controlled substance over the State's objection. The trial court denied the State's motion for jury trial. The State then appealed from the denial of this motion, even though the defendant had not yet been sentenced.

The Pylant court refused to reach the merits of the State's right to a jury trial, first disposing of the appeal on finality grounds. Because the trial court's...