JIM GUNTER, Justice.
11 This appeal arises from an order of the Randolph County Circuit Court granting the State’s motion to vacate Appellant Charles (Chad) Green’s plea agreement and reinstating the original charges against him. We affirm.
In 2003, Appellant and his father, Billy Green, were charged with four counts of capital murder. Appellant was also charged with two counts of rape in a separate incident. On August 9, 2003, Appellant entered into a written plea agreement with the State. Pursuant to the plea agreement, Appellant was required to testify for the prosecution in his father’s capital murder trial and to “fully cooperate” with the prosecution of his father. Appellant also gave a video-taped statement in conjunction with the written plea offer. Appellant later attempted to withdraw from the agreement, claiming that the statement he made pursuant to the agreement was coerced. Plea negotiations continued, resulting in a plea offer being made by the prosecutor’s office on February 6, 2004. The offer incorporated hthe previous offer of August 9, 2003, but with a reduced term of imprisonment. Appellant accepted the plea offer by letter on February 11, 2004. The State attempted to withdraw the agreement because Appellant’s proffer of testimony did not comply with the terms of the written agreement. The parties subsequently resolved their dispute over the proffer provision and reached an agreement. On March 2, 2004, Appellant pled guilty to one count of first-degree murder and one count of kidnapping. He pled no contest to the two counts of rape. At the plea hearing, the trial court asked the prosecution to state the negotiated plea. In explaining the plea, the State did not specifically reference the written agreement. Appellant was sentenced pursuant to the plea agreement. A judgment and commitment order was filed on May 27, 2004.
Appellant testified for the prosecution, and Billy Green was convicted of capital murder and sentenced to death. In Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006), we reversed Billy’s conviction and remanded for a new trial. In 2006, the State sought to re-interview Appellant in order to prepare for Billy’s new trial. Appellant’s attorney, Larry Kissee, reported to the prosecutors that Appellant would not submit to a re-interview, but would reserve his comments for the new trial. The State filed a motion to vacate Appellant’s judgment and commitment order and to reinstate the original charges against him. A hearing commenced on March 2, 2004, wherein the trial court found that Appellant had breached his plea agreement with the State and granted the State’s motion to vacate. Appellant now brings his appeal.
IjjFor his first point on appeal, Appellant asserts that the trial court erred in holding that he breached his plea agreement. Specifically, Appellant contends that (1) the August 9, 2003 agreement which the State seeks to enforce is not the agreement which was eventually consummated; and (2) the State’s motion is premature.
The State responds, asserting that Appellant failed to comply with the plea agreement. Specifically, the State contends that (1) the plea agreement includes the terms of the August 9, 2003 agreement; (2) Appellant violated the terms of the plea ágreement by refusing to meet with prosecutors regarding Billy Green’s new trial; and (3) the State’s motion was not premature.
Issues concerning the interpretation and enforcement of a plea agreement are reviewed de novo. United States v. Yah, 500 F.3d 698 (8th Cir.2007). We apply general contract principles in interpreting plea agreements. Id. When a dispute arises over the meaning of a plea agreement, this court will discern the intent of the parties “as expressed in the plain language of the agreement viewed as a whole.” Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2002).
In the August 9, 2003 agreement, Appellant agreed to “fully cooperate with the prosecution of Billy Green concerning all charges to be filed against him including but not limited to four counts of capital murder,” and to “testify at trial in the State’s case against Billy Green.” The offer was made under the condition that Appellant “fully comply with all provisions of the offer made by the State of Arkansas referenced herein. Any reluctance [4or failure to perform the acts set forth in this agreement shajl void the document.” In his motion to enforce plea agreement, Appellant admits that the plea offer accepted by Appellant on February 11, 2004, incorporated the previous offer of August 9, 2003, but with a reduced term of imprisonment.
When asked by the trial court to read the negotiated plea agreement into the record, the State stated the following:
Your Honor, subject to, the state will read the facts and subject to the defendant admitting to those facts and pleading guilty in Case Number 2003-12B and subject to his pleading guilty to the facts as will be announced by the State in Case Number 2004-23, the state will make the following recommendation: That sentence be deferred against this defendant until such time as he has testified against his co-defendant, Billy Green, which testimony will be truthful and consistent with his previous testimony given to the police by video recorded statement on August 9, 2003. In addition the defendant will make every effort to help the police locate the murder weapon, the .22 caliber rifle. Again, that’s subject to his pleading to the facts which will be read into the record when Your Honor asks for them. The recommendation will be that he serve twenty years on the Class Y first degree murder, twenty years on the Class Y kidnapping, both of these to be consecutive, and those are subject to the seventy percent rule. Recommendation would be that he serve two twenty year sentences on each, on each of the two rape charges in 2004-23, those two twenty year sentences to run concurrent and concurrent with Case Number 2003-123. The State requests and I understand the agreement is that sentencing will be deferred until after the defendant has testified in the co-defendant’s trial. Last but not least, he’ll get jail time credit from the date of his arrest back I believe the end of July, 2003, whatever number of days that is, at the time he testifies.
The State admits that it did not read the written agreement into the record or reference the written agreement. However, Appellant’s counsel stated, “we understand that we are to comply with the plea agreement,” and that “we agree to cooperate with the State.” | ^Appellant agreed with his counsel’s statement by stating “yes, sir.” He stated “yes, sir” when asked if he understood his guilty plea statement and “no, sir” when asked if he had any questions regarding the statement.
It is well settled that a written contract may be modified by a later oral agreement. Shumpert v. Arko Tel. Commc’ns, Inc., 318 Ark. 840, 888 S.W.2d 646 (1994). Appellant asserts that the written plea agreement is not incorporated in the final agreement because the parties’ ultimate agreement included two prison terms of twenty years, as opposed to the two twenty-five-year terms contemplated in the written plea. He relies on State v. Crawford, 373 Ark. 95, 281 S.W.3d 736
Free access — add to your briefcase to read the full text and ask questions with AI
JIM GUNTER, Justice.
11 This appeal arises from an order of the Randolph County Circuit Court granting the State’s motion to vacate Appellant Charles (Chad) Green’s plea agreement and reinstating the original charges against him. We affirm.
In 2003, Appellant and his father, Billy Green, were charged with four counts of capital murder. Appellant was also charged with two counts of rape in a separate incident. On August 9, 2003, Appellant entered into a written plea agreement with the State. Pursuant to the plea agreement, Appellant was required to testify for the prosecution in his father’s capital murder trial and to “fully cooperate” with the prosecution of his father. Appellant also gave a video-taped statement in conjunction with the written plea offer. Appellant later attempted to withdraw from the agreement, claiming that the statement he made pursuant to the agreement was coerced. Plea negotiations continued, resulting in a plea offer being made by the prosecutor’s office on February 6, 2004. The offer incorporated hthe previous offer of August 9, 2003, but with a reduced term of imprisonment. Appellant accepted the plea offer by letter on February 11, 2004. The State attempted to withdraw the agreement because Appellant’s proffer of testimony did not comply with the terms of the written agreement. The parties subsequently resolved their dispute over the proffer provision and reached an agreement. On March 2, 2004, Appellant pled guilty to one count of first-degree murder and one count of kidnapping. He pled no contest to the two counts of rape. At the plea hearing, the trial court asked the prosecution to state the negotiated plea. In explaining the plea, the State did not specifically reference the written agreement. Appellant was sentenced pursuant to the plea agreement. A judgment and commitment order was filed on May 27, 2004.
Appellant testified for the prosecution, and Billy Green was convicted of capital murder and sentenced to death. In Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006), we reversed Billy’s conviction and remanded for a new trial. In 2006, the State sought to re-interview Appellant in order to prepare for Billy’s new trial. Appellant’s attorney, Larry Kissee, reported to the prosecutors that Appellant would not submit to a re-interview, but would reserve his comments for the new trial. The State filed a motion to vacate Appellant’s judgment and commitment order and to reinstate the original charges against him. A hearing commenced on March 2, 2004, wherein the trial court found that Appellant had breached his plea agreement with the State and granted the State’s motion to vacate. Appellant now brings his appeal.
IjjFor his first point on appeal, Appellant asserts that the trial court erred in holding that he breached his plea agreement. Specifically, Appellant contends that (1) the August 9, 2003 agreement which the State seeks to enforce is not the agreement which was eventually consummated; and (2) the State’s motion is premature.
The State responds, asserting that Appellant failed to comply with the plea agreement. Specifically, the State contends that (1) the plea agreement includes the terms of the August 9, 2003 agreement; (2) Appellant violated the terms of the plea ágreement by refusing to meet with prosecutors regarding Billy Green’s new trial; and (3) the State’s motion was not premature.
Issues concerning the interpretation and enforcement of a plea agreement are reviewed de novo. United States v. Yah, 500 F.3d 698 (8th Cir.2007). We apply general contract principles in interpreting plea agreements. Id. When a dispute arises over the meaning of a plea agreement, this court will discern the intent of the parties “as expressed in the plain language of the agreement viewed as a whole.” Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2002).
In the August 9, 2003 agreement, Appellant agreed to “fully cooperate with the prosecution of Billy Green concerning all charges to be filed against him including but not limited to four counts of capital murder,” and to “testify at trial in the State’s case against Billy Green.” The offer was made under the condition that Appellant “fully comply with all provisions of the offer made by the State of Arkansas referenced herein. Any reluctance [4or failure to perform the acts set forth in this agreement shajl void the document.” In his motion to enforce plea agreement, Appellant admits that the plea offer accepted by Appellant on February 11, 2004, incorporated the previous offer of August 9, 2003, but with a reduced term of imprisonment.
When asked by the trial court to read the negotiated plea agreement into the record, the State stated the following:
Your Honor, subject to, the state will read the facts and subject to the defendant admitting to those facts and pleading guilty in Case Number 2003-12B and subject to his pleading guilty to the facts as will be announced by the State in Case Number 2004-23, the state will make the following recommendation: That sentence be deferred against this defendant until such time as he has testified against his co-defendant, Billy Green, which testimony will be truthful and consistent with his previous testimony given to the police by video recorded statement on August 9, 2003. In addition the defendant will make every effort to help the police locate the murder weapon, the .22 caliber rifle. Again, that’s subject to his pleading to the facts which will be read into the record when Your Honor asks for them. The recommendation will be that he serve twenty years on the Class Y first degree murder, twenty years on the Class Y kidnapping, both of these to be consecutive, and those are subject to the seventy percent rule. Recommendation would be that he serve two twenty year sentences on each, on each of the two rape charges in 2004-23, those two twenty year sentences to run concurrent and concurrent with Case Number 2003-123. The State requests and I understand the agreement is that sentencing will be deferred until after the defendant has testified in the co-defendant’s trial. Last but not least, he’ll get jail time credit from the date of his arrest back I believe the end of July, 2003, whatever number of days that is, at the time he testifies.
The State admits that it did not read the written agreement into the record or reference the written agreement. However, Appellant’s counsel stated, “we understand that we are to comply with the plea agreement,” and that “we agree to cooperate with the State.” | ^Appellant agreed with his counsel’s statement by stating “yes, sir.” He stated “yes, sir” when asked if he understood his guilty plea statement and “no, sir” when asked if he had any questions regarding the statement.
It is well settled that a written contract may be modified by a later oral agreement. Shumpert v. Arko Tel. Commc’ns, Inc., 318 Ark. 840, 888 S.W.2d 646 (1994). Appellant asserts that the written plea agreement is not incorporated in the final agreement because the parties’ ultimate agreement included two prison terms of twenty years, as opposed to the two twenty-five-year terms contemplated in the written plea. He relies on State v. Crawford, 373 Ark. 95, 281 S.W.3d 736 (2008) for his proposition that a plea agreement is limited to the terms read into the record at trial. In Crawford, we held that the State was free to bring a subsequent prosecution on a felony charge because the record did not reflect that a nolle prosequi was an unconditional dismissal or a final disposition of the case. We did not, as Appellant asserts, hold that a plea agreement must consist solely of the terms read into the record at trial.
The State points out that it would be illogical to presume that the State, when offering to reduce the prison term in Appellant’s favor, also agreed to abandon virtually all of the other conditions set forth in the parties’ written agreement. We agree. Here, the parties’ agreement was set out in advance through the written agreement. The State explained the substance of the agreement in open court, but did not abandon the conditions of the written agreement. All negotiations between the State and Appellant were based on I fithe original August 9, 2003 plea agreement. Thus, we hold that the written agreement was not voided by the statements read into the record in open court, and that it was incorporated into the final plea agreement.
We turn now to Appellant’s assertion that he fulfilled his obligations of the plea agreement by testifying in Billy’s first trial and is not required to now testify in a second trial. In Miles, supra, the appellant entered into a plea agreement with the State whereby he agreed to testify truthfully at his accomplice’s trial in return for a reduced charge and sentence. At his accomplice’s first trial, he testified truthfully that he and his accomplice committed aggravated robbery. The trial ended in a mistrial. At the accomplice’s second trial, the appellant changed his testimony, claimed that his former statement was coerced, and testified that neither he nor his accomplice was involved in the crime. We held that the appellant had breached the plea agreement by testifying falsely at the accomplice’s second trial. We stated that the word “trial” used in the plea agreement did not apply solely to the first trial that ended in a mistrial. “Clearly, the intent of the parties was for testimony to be used in a trial deciding the issue of guilt.” Id. at 253, 85 S.W.3d at 914.
Here, the agreement did not limit Appellant’s testimony to the “original trial” or to “one trial only.” Thus, we hold that the intent of the parties “as expressed in the plain language of the agreement viewed as a whole,” was for Appellant to testify truthfully in a trial ending in a final judgment against his father.
Appellant argues in the alternative that even if he is obligated to testify in a retrial, |7the State’s motion to vacate was premature because he has not yet been called to the stand at the retrial. Appellant refused to meet with the prosecuting attorney on August 21, 2006, to discuss his testimony against his father. In the hearing on the motion to vacate, Appellant’s attorney, Larry Kissee, testified to the following:
He just said he would—tell them I am not going to talk to them. I think he said something to the effect that he would tell the true story when he testified.
The issue here is whether Appellant was obligated not only to testify at retrial, but whether he was also obligated to cooperate with the prosecutors before his testimony. In the August 9, 2003 plea agreement, Appellant agreed to “fully cooperate with the prosecution of Billy Green.” At the plea hearing, the following colloquy took place:
Mr. Kissee: We agree to cooperate with the state.
Appellant: Yes, sir.
The Court: Yes, sir to his statement? Appellant: Yes, sir.
Clearly, Appellant agreed to cooperate with the State in the plea agreement. We conclude that such cooperation includes not only testifying at retrial, but also assisting prosecutors in their preparation for trial, which Appellant refused to do. Based on the terms of the plea agreement, Appellant has breached the plea agreement by refusing to cooperate with the State.
We now turn to the issue of the State’s remedy. Appellant asserts that neither the State nor the trial court cited any Arkansas procedure that would permit the vacation of |Ra consummated plea and sentence. He contends that once his sentence was put into execution, it could no longer be amended. The State responds, asserting that the only way to enforce the plea agreement was for the trial court to vacate Appellant’s plea and sentence.
We have long held that a trial court loses jurisdiction to modify or amend an original sentence once the sentence is put into execution. Gavin v. State, 354 Ark. 425,125 S.W.3d 189 (2003). Here, the trial court did not amend or modify Appellant’s sentence. Rather, the trial court simply enforced the terms of the plea agreement entered into by the parties. Under the terms of the agreement, both parties bargained for and received substantial benefits. The State obtained Appellant’s guilty plea and his promise to testify against his father. Appellant received reduced charges and sentence. Appellant should not be allowed to benefit from his breach of this agreement. Applying general contract principles to this case, the appropriate remedy is to vacate the breached plea agreement and restore the parties to their respective positions before the plea agreement was entered.
Appellant also argues that if we do hold that a trial court can vacate a plea agreement that has been breached, such a procedure’s retrospective application to Appellant would violate federal and state constitutional guarantees of the due process of law under the Fifth and Fourteenth Amendments and article 2, § 8 of the Arkansas Constitution. Appellant cites to Mauppin v. State, 309 Ark. 285, 831 S.W.2d 104 (1992), where we stated the following:
|3“Ex post facto” literally means a law passed after the fact. That is, after the occurrence of the fact, or the crime. The constitutional prohibition on ex post facto laws is a limitation upon the powers of the legislature and does not of its own force apply to the judicial branch. However, the principle on which the clause is based, the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties, is fundamental to our concept of constitutional liberty, and as such, is protected against judicial action by the due process clause of the Fifth Amendment. Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).
Accordingly, the Supreme Court held that an unforeseen judicial enlargement of a criminal statute, applied retrospectively, operates precisely like an ex post facto law that is prohibited by Article I, § 10 of the Constitution of the United States, and it follows that such an interpretation is barred by the due process clause of the Fourteenth Amendment from achieving precisely the same result by judicial construction.
Once again, the trial court in the present case is not attempting to enlarge a criminal statute. The trial court is not changing, amending, or modifying Appellant’s sentence. It is simply vacating the plea agreement that was entered into between Appellant and the State because Appellant breached the agreement. As for Appellant’s argument that he did not have fair warning of the consequences of his actions, the plea agreement clearly gives Appellant fair warning that he must cooperate with the prosecutors. At the hearing, the State made it clear for the record the consequences if Appellant breached the agreement, stating:
[I]f the defendant fails or refuses to comply with the announced agreement that he would testify truthfully and consistently against his father, consistent that is with his statement of August 9th of 2003, that this recommendation by the state is not binding on the Court and that he is subject to the full range of punishment under the law for all four of those offenses.
Appellant cannot now argue that he did not have fair warning that he must cooperate with | mthe State.
For his final point on appeal, Appellant asserts that the vacation of the plea agreement and retrial would violate his federal and state constitutional guarantees against double jeopardy. Appellant also contends that a retrial would be barred by Arkansas Code Annotated § 5-1-112, which allows a former prosecution to be an affirmative defense to a subsequent prosecution for the same offense in certain circumstances.
The United State Supreme Court rejected the argument that the reinstatement of original charges pursuant to a plea agreement violated the Double Jeopardy Clause in Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987). In Rick-etts, the appellant and the State of Arizona entered into an agreement wherein the State obtained the appellant’s guilty plea and his promise to testify against “any and all parties” involved in a murder. The appellant, a direct participant in the murder, received a reduced sentence and the State’s promise that he would not be prosecuted for his involvement in certain other crimes. The plea agreement stated that if the appellant breached the agreement, it would become null and void and his original charge would be automatically reinstated. The Court held that, under those provisions, the agreement was precisely equivalent to an agreement waiving a double-jeopardy defense. Applying Ricketts to the present case, we hold that Appellant waived his double-jeopardy defense by entering into a plea agreement providing that he would become subject to the full range of punishment for his original charges in the event of a breach. Moreover, Appellant’s argument regarding Ark. Code Ann. § 5-1-112 is premature as he has fynot yet been prosecuted. Based on the foregoing, we hold that the trial court did not err in vacating Appellant’s judgment-and-commitment order and reinstating his original charges.
Affirmed.
BROWN, J., concurs. HANNAH, C.J., and WILLS, J. dissent. IMBER, J., not participating.