Simmons v. State

34 S.W.3d 768, 72 Ark. App. 238, 2000 Ark. App. LEXIS 808

• Court: Court of Appeals of Arkansas
• Decided: December 20, 2000
• Docket: CA CR 99-1468
• Status: Published

Opinions

Sam BIRD, Judge.

Tracy Donnell Simmons brings this appeal from the Arkansas County Circuit Court’s denial of

his motion to suppress controlled substances found on his person and in his car. He contends that the trial court erred in refusing to grant his motion to suppress evidence because the search of his person and car were without probable cause and a valid warrant and, thus, a violation of his Fourth Amendment right to be free from unreasonable searches and seizures. Following the court’s denial of his motion to suppress, Simmons entered a plea of guilty to a charge of possession of marijuana with intent to deliver and was sentenced to a term of sixty months in the Arkansas Department of Correction. In entering his guilty plea, Simmons apparently attempted to preserve his right to appeal from the trial court’s order denying his motion to suppress evidence pursuant to the provisions of Ark. R. Crim. P. 24.3. However, because we cannot find that Simmons has complied with the requirements of that rule, we dismiss the appeal because we lack jurisdiction to hear it.

The abstract submitted by Simmons reveals that after the court denied Simmons’s motion to suppress, the prosecuting attorney, on May 25, 1999, made a written “Sentence Recommendation” stating that “[i]n accordance with the Plea Agreement between the Prosecuting Attorney and the defendant’s attorney, the defendant agrees to plead guilty to the charges now pending against him in this case” and that upon the entry of such plea, the State would recommend to the court a sentence of sixty months confinement in the Arkansas Department of Correction. Other recommendations by the prosecuting attorney were that the “charges nol prossed in CR-98-168 will not be refiled as long defendant obeys all laws.”

On May 27, 1999, the court held a sentencing hearing, at which Simmons pled guilty to possession of marijuana with intent to deliver. At that hearing, the following exchange took place between the court, Simmons, and defense counsel:

The Court: Let’s see, you are Tracy Donnell Simmons?

Simmons: Yes.

The Court: And, Mr. Simmons, you know you are charged with possession of marijuana with intent to deliver, which is a “C” felony, and carries a range of punishment of four to ten years?

Simmons: Yes, sir.

The Court: And you are entitled to a jury trial?

Simmons: Right.

The Court: I believe we were set for one this morning?

Defense Attorney: Yes, your honor.

The Court: It’s my understanding, Mr. Simmons, that you want to give up your right to a jury trial and change your plea ■to guilty?

Simmons: Yes, sir.

The Court: In exchange for a plea of guilty, the State has agreed to recommend a sentence of sixty months in the Department of Correction.

Simmons: Yes, sir.

The Court: And that CR.-980168 will be, or it already has been nolle pressed?

Defense Attorney: It was nolle pressed. It will not be refiled.

The Court: It will not be re-filed as part of the — as long as you are — stay out of trouble. And you have gone over the guilty plea statement with Ms. Boyd?

Simmons: Excuse me?

The Court: You have gone over this statement, this guilty plea statement, with Ms. Boyd?

Simmons: Yes, sir.

The Court: Do you understand it?

Simmons: Yes, sir.

The Court: Do you have any questions at all about it?

Simmons: No, sir.

The Court: Is this your signature?

Simmons: Yes, sir.

The Court: And other than this sixty months, has anybody promised you anything, or threatened you with anything in order to get you to change your plea?

Simmons: No, sir.

The Court: And are you guilty?

Simmons: Yes, sir.

The Court: All right, thank you Mr. Simmons.

Defense Attorney: Your honor, we have additional I spoke with Mr. Dittrich on, and that was a plea. We had also discussed that he is reserving his right to appeal the denial of the Motion to Suppress Pursuant to Rule 28 (sic).

The Court: This is a conditional plea?

Ms. Boyd: Yes, Your Honor.

The Court: All right.

The “Guilty Plea Statement” referred to by the trial court consists of two pages, and was signed by Simmons and his attorney on May 27, 1999. The statement sets forth various rights that are waived upon the entry of a guilty plea, including a waiver of “[t]he right to appeal from the verdict and judgment, challenging all issues of fact and law,” and, “The right to challenge the legality of my arrest, and the admissibility and consideration of evidence which may be presented against me.”

Attached to the “Guilty Plea Statement” and labeled as page 3 is the May 25, 1999, “Sentence Recommendation,” signed by the prosecuting attorney, Robert Dittrich. At the bottom of the page constituting the prosecuting attorney’s sentence recommendation, is a handwritten statement of unknown origin¹ stating: “Conditional plea-re suppression — No objection to boot camp. No further charges to be filed. May appeal suppression pursuant to Rule 28 [sic] of Arkansas Rules of Criminal Procedure.”

The court’s “Judgment and Commitment Order” appears to have been dated and signed by the judge on May 28, 1999, filed with the clerk on June 2, 1999, and Simmons filed his notice of appeal on July 1, 1999. On July 2, 1999, the court entered an order finding that Simmons had entered a conditional plea of guilty, reserving the right to appeal from the court’s denial of his motion to suppress.

After Simmons filed his appeal, the State moved to dismiss it, stating that Simmons had failed to preserve it because he had not complied with the strict requirements of Ark. R. Crim. P. 24.3(b). This court denied the State’s motion. Thereafter, the State sought review of our denial of its motion in the Arkansas Supreme Court, but that court declined to consider the State’s request for review, holding that “From the pleadings, it appears that there is a dispute as to whether appellee perfected a conditional plea of guilty in order to preserve his right to appeal. The court of appeals’ decision to deny the motion to dismiss will permit that court to review that question as it considers the merits of the appeal.” See Simmons v. State, 341 Ark. 251, 15 S.W.3d 344 (2000).

In the jurisdictional statement of its brief, the State again asserts that Simmons has failed to strictly comply with the requirements of Ark. R. Crim. P. 24.3. First, the State argues that because Simmons’s abstract does not detail the pleadings upon which he claims that a written reservation of the right to appeal was made, but refers only to the circuit court’s post-plea order and to the plea hearing, this court should dismiss the appeal for abstracting deficiencies. In the alternative, the State also argues that the transcript does not contain an adequate written reservation as required by the rule. It argues that Simmons’s signature on the guilty-plea statement, which acknowledges his waiver of his right to appeal, is in direct conflict with the handwritten note at the bottom of the sentence recommendation that refers to his reservation of his right to appeal.

We agree with the State that Simmons has failed to comply with the requirements of Ark. R. Crim. P. 24.3 and that his appeal must be dismissed for lack of jurisdiction.

Arkansas Rule of Criminal Procedure 24.3(b) states:

With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendré [contendere], reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.

The supreme court has interpreted Ark. R. Crim. P. 24.3(b) to require strict compliance with the writing requirement in order for the appellate court to obtain jurisdiction. Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998). Absent compliance with the express terms of Rule 24.3(b), this court acquires no jurisdiction to hear an appeal, even when there has been an attempt at trial to enter a conditional plea. Ray v. State, 328 Ark. 176, 941 S.W.2d 427 (1997).

We hold that Simmons has failed to strictly comply with the requirements of Rule 24.3 in two respects. First, there is no indication that the prosecuting attorney has consented to the conditional plea, as required by Ark. R. Crim. P. 24.3. Except for the extraneous handwriting of unknown origin that appears beneath the prosecuting attorney’s signature at the bottom of his sentence recommendation, there is nothing in the sentence recommendation to indicate that a conditional plea was a part of that recommendation. Clearly, the trial judge, who had a copy of the sentence recommendation and guilty plea statement before at the time of sentencing, was not aware that Simmons’s plea was conditional until he was so apprised by defense counsel after Simmons had entered his plea, giving rise to the strong probability that the handwriting of unknown origin at the bottom of the sentence recommendation was not placed there until during or after the sentencing hearing. There is no indication that the prosecuting attorney was in attendance at the sentencing hearing. In fact, the exchange between the court and counsel during the sentencing hearing, quoted at length above, clearly implies that the prosecuting attorney was not there.

The second problem with Simmons’s attempted conditional plea is that his “Guilty Plea Statement” explicitly contradicts the notion that his plea is conditional and that he reserved the right to challenge the court’s disposition of his motion to suppress. See Green v. State, supra. As already noted, the guilty plea statement provides expressly that he waives the right to challenge on appeal the admissibility and consideration of evidence which may be presented against him, and the right to appeal from the judgment entered against him. The waiver of these rights is directly contradictory to the purported reservation of the right to challenge the trial court’s denial of a motion to suppress evidence.

The dissent suggests that our decision to dismiss Simmons’s appeal is based on the fact that “... Simmons’s attorney and the prosecutor used a preprinted form, not specifically designed for memorializing a defendant’s conditional plea, and entered handwritten notations to indicate that the plea was conditional.” The dissent’s characterization is inaccurate for three reasons. First, there is nothing in the record to indicate that the prosecuting attorney participated at all in the use of any form that was intended to memorialize Simmons’s plea as a conditional one under Rule 24.3. Second, the form that was used contains language that directly conflicts with Simmons’s contention that his plea was conditional. And third, the handwritten notations that were added at the bottom of the “Guilty Plea Statement” in an attempt to make Simmons’s plea appear to be conditional were not only missing from the form when it was presented to the trial court at the time the guilty plea was entered, but the handwritten notations bear no resemblance to the handwriting of the person who filled out the “Sentence Recommendation” that the prosecuting attorney signed two days before Simmons entered his guilty plea, giving rise to a strong inference that the notations were placed on the form without the knowledge or consent of the prosecuting attorney.

Appeal dismissed.

Robbins, C.J., and Jennings, Koonce, Griffen, Crabtree, and MEADS, JJ., agree. Roaf and Hart, JJ., dissent.

1 The handwritten statement at the bottom of the sentence recommendation is in two different handwritings, both of which are obviously different from the handwriting of the person who filled in the handwritten portions of the sentence recommendation.