Ru'nnel v. State

421 S.W.3d 324, 2012 Ark. App. 412, 2012 Ark. App. LEXIS 547
CourtCourt of Appeals of Arkansas
DecidedJune 27, 2012
DocketNo. CA CR 11-996
StatusPublished
Cited by1 cases

This text of 421 S.W.3d 324 (Ru'nnel v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ru'nnel v. State, 421 S.W.3d 324, 2012 Ark. App. 412, 2012 Ark. App. LEXIS 547 (Ark. Ct. App. 2012).

Opinions

ROBERT J. GLADWIN, Judge.

| lAppellant Dakota Logen Ru’nnel appeals his July 14, 2011 conviction of second-degree sexual assault and sentence of twenty years in the Arkansas Department of Correction. He argues that the trial court did not strictly comply with Arkansas Rules of Criminal Procedure 25.8(b) and 26.1(b)(v) (2011) when it denied his motion to withdraw his guilty plea and motion to reconsider. We affirm because appellant failed to preserve his arguments for appellate review.

The State filed a felony information on November 20, 2009, charging appellant with one count of felony rape, alleging that he had engaged in deviate sexual activity or sexual intercourse with a child less than fourteen years old. Appellant and the State entered into a plea agreement whereby appellant pled guilty to second-degree sexual assault and the State agreed to recommend that appellant be sentenced to six years’ probation, 120 days’ | ^incarceration in the county jail, and a $750 fine. On February 17, 2011, appellant’s counsel announced a negotiated plea in Pulaski County Circuit Court, whereby the trial court accepted the guilty plea. When the State gave the trial court its recommendation for sentencing, the trial court declined to accept the recommended sentence because it provided for probation rather than imprisonment.

After the trial court announced its concerns with the negotiated recommendation, a discussion ensued among counsel for both parties and the trial court regarding continuing the sentencing portion of the hearing. Defense counsel suggested that the victim or her guardian appear at the sentencing hearing. The following colloquy took place:

The Court: Well, counsel, there’s another way we can do this. The court can set this for another hearing, order a presentencing report and whether the victim is here or not, sentence. The court doesn’t have to accept this recommended plea and the defendant can withdraw the guilty plea.
Defense Counsel: We don’t have the State’s — we never had the State’s authority or agreement to plea[d] to the court, so we had a meeting of the minds for a negotiated plea.
The Court: I understand.
Defense Counsel: And terms and conditions were such that upon counsel, my client was willing to enter it. So I think we would rather continue.
The Court: Very well. Let me put it this way. Among the three lawyers involved in this case, you, you, and the court, we’re going to come back on the twenty fourth of February....
Defense Counsel: Uh-huh.
IsThe Court: ... for the purpose of continuing the sentencing hearing. The court will leave it to the two of you on how you want to fashion things between now and then. I think everybody knows the court’s concerns.

At the June 15, 2011 sentencing hearing, defense counsel moved to withdraw appellant’s guilty plea pursuant to Arkansas Rule of Criminal Procedure 25.3(b).

Defense Counsel: Basically, that rule of criminal procedure, Your Honor, says where there’s a lack of concurrence by the court with a negotiated plea the parties may have a right to either affirm or withdraw the plea.
And that is what we’re doing, Your Honor. We were given that opportunity by the court and at that point — I don’t have the date — we said we will not withdraw, but I did not have a chance at that point to have a meaningful conversation with my client and since that point before the presen-tenee report and imposition of sentence was made, the court — as the Rules of Criminal Procedure reveals, the court said it had a difference of opinion with the negotiated plea and what it would consider under this set of circumstances.
And so upon having a more meaningful and reflective discussion with my client and counsel, he decided that he would need to withdraw his plea.
And I, one, for the record would like to say that rule contemplates that counsel find out ahead of time what the court’s position is and I failed to do that and appreciate that the court does say make a mistake once, experience; make it twice would be stupid. So I thank this court for giving me the experience because I found myself in the very same position for another client in another court and I am experienced. But that was my mistake, but the Rule of Criminal Procedure, you know, says that’s fine, you still have that opportunity and we have that and that’s where we are.
|4And, you know, every client is a life and every case is unique and the writers of this procedure contemplated either way that if it’s not going down as negotiated, you may pull the deal almost — almost as a matter of right and that is what we’re asking to do at this point.
The Court: D[eputy prosecuting attorney]?
Deputy Prosecuting Attorney: Your Honor, just in looking at Rule 26.1, the plea withdrawal, it does say it’s discretionary for the court to allow that. So obviously we had entered— as the State, we had entered into an agreement with the defendant contemplating a certain recommendation to the court, which the court has, I believe, indicated it did not wish to accept our recommendation, so it would be discretionary for the court to allow the defendant to withdraw his plea if the court chose to do that.
Deputy Prosecuting Attorney: I was looking at Subsection A, Your Honor.
The Court: Yes. The court recalls clearly the history.
According to the Docs Binder, this matter was set for omnibus [o]n January 26 and at the time of the omnibus, it was reset for a report on the seventeenth of February and at that time on the seventeenth of February, the negotiated plea was presented to the court.
The guilty plea had been accepted. The negotiated plea was presented to the court and the court expressed its disinclination — I think you correctly phrased it — disinclination to accept the plea — the sentence set out by the plea negotiations.
At that time, the court in open court offered to the defendant the opportunity to withdraw the guilty plea. The defendant chose not to do so as was his right. So I’m trying to figure out why the court should allow the defendant to withdraw a guilty plea in June when the ^defendant chose not to do it in February. Help me understand.

After a discussion off the record, the trial court took a recess then ruled on the motion, denying appellant’s request to withdraw the guilty plea, citing Arkansas Rule of Criminal Procedure 26.1, and emphasizing that at no time did the trial court indicate its concurrence with the sentence concessions that were the result of the negotiated plea agreement. At the conclusion of the sentencing hearing, the trial court sentenced appellant to twenty years’ imprisonment in the Arkansas Department of Correction. Before the entry of judgment, appellant filed a motion for reconsideration, again seeking to withdraw his guilty plea. The motion states in pertinent part as follows:

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Bluebook (online)
421 S.W.3d 324, 2012 Ark. App. 412, 2012 Ark. App. LEXIS 547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/runnel-v-state-arkctapp-2012.