Green v. State

209 S.W.3d 339, 362 Ark. 459
Supreme Court of Arkansas·Decided June 2, 2005·No. CR 04-1356·Published·Cited by 20 cases

Opinion

Jim Hannah, Chief Justice.

Billy Dale Green appeals an order denying his motion to withdraw his guilty plea under Ark. R. Crim. P. 26.1. Green asserts that the circuit court abused its discretion in failing to appoint him counsel and in failing to set a hearing on the motion. We find no abuse of discretion and affirm. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(2).

Facts

On July 17, 2003, Pocahontas Police Department Officer Tim Whitacker saw a black vehicle and a blue vehicle chasing a white vehicle. Each vehicle was being driven recklessly and at a high rate of speed. Whitacker followed the three vehicles, and the blue vehicle rear-ended the black vehicle. The blue vehicle left the scene; however, the black vehicle stopped, started to leave, and then stopped again. Whitacker pulled up, stopped, and got out of his car. As he was doing so, he saw the driver of the black vehicle, later identified as Green, toss something from the car. Two containers were found a few feet from Green’s car. The contents were later identified as methamphetamine.

Green was arrested at the scene. On April 13, 2004, he entered a guilty plea to one count of possession of methamphetamine with the intent to deliver and two counts of drug paraphernalia. Green was represented by counsel at the hearing on his guilty plea. However, on May 6, 2004, and without consulting counsel, Green filed a pro se motion to withdraw his guilty plea. The motion was considered by the circuit court at a hearing on May 24, 2004, the same hearing in which Green was sentenced.

The motion to withdraw his guilty plea asserted that Green received ineffective assistance of counsel in that his attorneys were not prepared for trial and that they told him he was not entitled to a continuance and needed to plead guilty. Green further asserted that his attorneys’ ineffective assistance of counsel arose from a failure to obtain work records of Green’s wife which would show that she was at work and “could not have seen what she was to testify to at my trial. . . .” There is no assertion in the motion that his counsel could not represent him due to a conflict of interest, and Green made no request in the motion, for appointment of counsel.

At the May 24, 2004, hearing, the State was offered an opportunity to respond to the motion and did so, arguing that contrary to Green’s assertion, the work records would not prove Mrs. Green was at work at the time she was supposed to have seen alleged criminal conduct by Green. Green was offered the opportunity to reply to the State’s response and did not do so. He stated that he did not know how to respond. He also stated, “I’d like to have a trial on it.” The motion was denied, and Green was sentenced to life for possession with intent to deliver methamphetamine and thirty-six months on each count of possession of drug paraphernalia.

Standard of Review

We have not previously set out the standard of review in a case based on denial of a motion under Arkansas Rule of Criminal Procedure 26.1. Rule 26.1 provides that once a plea of guilty has been accepted by the court, “the court in its discretion” may allow withdrawal of the plea. The plea, however, must be withdrawn prior to entry of judgment. The standard of review is therefore abuse of discretion.

Withdrawal of a Guilty Plea

The State argues that we lack jurisdiction in this case because one may not appeal from a guilty plea. The State is correct that there is no right of appeal from a plea of guilty. Seibs v. State, 352 Ark. 472, 101 S.W.3d 802 (May 6, 2004); Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987). See also Ark. R. App. P. — Crim. 1(a).

However, when the matter appealed is from a decision which was neither a part of the guilty plea accepted nor part of sentencing, where sentencing was an integral part of accepting the guilty plea, the appeal is allowed. Hodge v. State, 320 Ark. 31, 894 S.W. 2d 927 (1995); Hill v. State, 318 Ark. 408, 887 S.W. 2d 275 (1994) (appeal from error in sentencing where sentencing hearing was not an integral part of hearing on the guilty plea); Jones v. State, 301 Ark. 510, 785 S.W.2d 217 (1990) (appeal from denial of post trial motion to correct illegal sentence); Brimer v. State, 295 Ark. 20, 746 S .W.2d 370 (1988) (appeal from denial of post trial motion to modify sentence to give credit for jail time). See also State v. Sherman, 303 Ark. 284, 796 S.W.2d 339 (1990). More recently in Bradford v. State, 351 Ark. 394, 94 S.W. 2d 904 (2003), and Reeves v. State, 339 Ark. 304, 5 S.W. 3d 41 (1999), we discussed appeals from a decision on a postjudgment motion to correct an illegal or incorrect sentence.

Because Green is alleging error by the circuit court in proceedings under his Rule 26.1 motion to withdraw his guilty plea, he is not appealing or attacking the plea itself. He has a right to appeal the denial of his Rule 26.1 motion.

Rule 26A

Green asserts that he is entitled to withdraw his guilty plea pursuant to Rule 26.1, which states in pertinent part:

(a) A defendant may withdraw his or her plea of guilty or nolo contendere as a matter of right before it has been accepted by the court. A defendant may not withdraw his or her plea of guilty or nolo contendere as a matter of right after it has been accepted by the court; however, before entry of judgment, the court in its discretion may allow the defendant to withdraw his or her plea to correct a manifest injustice if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of his or her motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant’s plea. A plea of guilty or nolo contendere may not be withdrawn under this rule after entry of judgment.
(b) Withdrawal of a plea of guilty or nolo contendere shall be deemed to be necessary to correct a manifest injustice if the defendant proves to the satisfaction of the court that:
(I) he or she was denied the effective assistance of counsel;
(ii) the plea was not entered or ratified by the defendant or a person authorized to do so in his or her behalf;
(iii) the plea was involuntary, or was entered without knowledge of the nature of the charge or that the sentence imposed could be imposed;
* * *

Green alleges that he suffered manifest injustice, and that he should be allowed to withdraw his guilty plea under Rule 26.1.

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Green v. State, 209 S.W.3d 339, 362 Ark. 459 (Ark. 2005).

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