State v. Vann Bragg

2016 Ark. 242

• Court: Supreme Court of Arkansas
• Decided: June 9, 2016
• Docket: CR-15-618
• Status: Published

Opinion

Cite as 2016 Ark. 242

SUPREME COURT OF ARKANSAS No. CR-15-618

STATE OF ARKANSAS Opinion Delivered June 9, 2016 APPELLANT APPEAL FROM THE PHILLIPS V. COUNTY CIRCUIT COURT [NO. CR-2009-198]

VANN BRAGG HONORABLE L.T. SIMES II, JUDGE APPELLEE APPEAL DISMISSED.

PAUL E. DANIELSON, Associate Justice

The State of Arkansas appeals an order of the Phillips County Circuit Court granting

appellee Vann Bragg’s petition for postconviction relief pursuant to Arkansas Rule of Criminal

Procedure 37.1. On appeal, the State argues that the circuit court clearly erred in granting

Rule 37 relief without making a finding that Bragg received ineffective assistance of counsel.

We dismiss the appeal for lack of appellate jurisdiction.

In February 2010, Bragg was ordered to serve five years’ probation after pleading guilty

to attempted delivery of cocaine. The State filed a petition to revoke Bragg’s probation in

March 2011, alleging that he had inexcusably failed to comply with the conditions of his

probation by, among other things, committing the offense of theft by receiving involving a

gold ring that had been stolen in a residential burglary. Bragg had been charged with theft Cite as 2016 Ark. 242

by receiving of the ring in CR-2011-42.1 He pleaded guilty to theft by receiving in CR-

2011-42 and was ordered to serve probation in that case. As a result of his negotiated guilty

plea in CR-2011-42, the State’s petition to revoke in this case was dismissed without

prejudice.

In July 2011, the State filed a second petition to revoke Bragg’s probation, alleging that

he had inexcusably failed to comply with the conditions of his probation by committing the

offenses of possession of firearms by certain persons, criminal use of a prohibited weapon, and

theft by receiving of a gun that had been stolen in the same residential burglary as the ring.

These offenses were the subject of charges against Bragg then pending in CR-2011-153. The

State further alleged that Bragg had inexcusably failed to comply with the conditions of his

probation by possessing firearms, by failing to pay his fine and costs, and by failing to report

to his probation officer.

At the revocation hearing in February 2012, counsel for Bragg argued that, according

to his understanding, the terms of Bragg’s negotiated guilty plea to the theft-by-receiving

charge involving the ring in CR-2011-42 foreclosed any other charges relating to property

stolen in the same residential burglary. The plea statement in CR-2011-42 and a transcript

of Bragg’s plea were admitted into evidence. His counsel sought dismissal of the petition to

revoke, contending that it was “patently unfair” for Bragg to be subject to revocation “for the

alleged same victim and alleged same burglary and alleged same property that was alleged to

1 The theft-by-receiving case is referred to in the record of this case as both CR-2011- 42 and CR-2011-47. For the sake of clarity, we refer to it as CR-2011-42.

2 Cite as 2016 Ark. 242

have been taken from her house . . . in two separate Petition for Revocation proceedings.”

The State responded that the conduct was different: the first revocation petition involved the

ring, while the second involved the weapons, and the weapons charges were not filed until

after the first revocation petition had been dismissed without prejudice. The circuit court

rejected Bragg’s argument on this point in a letter opinion, pointing out that the first

revocation petition had been dismissed without prejudice.

The circuit court ultimately revoked Bragg’s probation, finding that he had violated

the conditions by committing offenses punishable by imprisonment—including possession of

firearms by certain persons, criminal use of a prohibited weapon, and theft by receiving of the

gun—as well as by possessing firearms and failing to pay his fine and costs. After a sentencing

hearing, Bragg was sentenced to 180 months’ imprisonment. The sentencing order was

entered on July 31, 2012. Bragg appealed, challenging the sufficiency of the evidence to

support the revocation of his probation. The Arkansas Court of Appeals affirmed. See Bragg

v. State, 2013 Ark. App. 261. The mandate issued on May 7, 2013.

On July 8, 2013, Bragg timely filed his Rule 37 petition. He argued that the “Petition

for Revocation should be dismissed, and the Defendant should be released from custody for

the following reasons”: (1) the revocation hearing had been continued numerous times, once

because the State’s witnesses failed to appear, and the State should not have received yet

another continuance; (2) as part of the plea bargain in CR-2011-42, the State had “impliedly

agreed” not to file a petition to revoke regarding property stolen in the same residential

burglary; (3) when it charged Bragg with theft by receiving of the ring in CR-2011-42, the

3 Cite as 2016 Ark. 242

State should have known that it could have also charged him with being a felon in possession

of firearms; (4) Bragg’s trial counsel was ineffective for failing to obtain a statement from the

prosecutor that his plea in CR-2011-42 “would result in the dismissal [of] all counts of the

revocation of probation with prejudice”; and (5) the State failed to prove that he had failed

to pay probation fees or report to his probation officer. In response, the State maintained that

Bragg’s contentions were not cognizable in a Rule 37 proceeding. With respect to the

implied-agreement claim, the State asserted that it “would not enter into any agreement

whereby it would be precluded ‘with prejudice’ from revoking a criminal defendant’s

unexpired probation.”

The circuit court held an evidentiary hearing on Bragg’s Rule 37 petition on April 4,

2014. At the hearing, Bragg and his father both testified that their understanding was that the

negotiated guilty plea in CR-2011-42 would resolve all pending charges. Bragg’s trial

counsel, Dion Wilson—who represented him in both the revocation case and CR-2011-

42—testified that his understanding was the same based on his conversations with the

prosecutor. Wilson further testified that he should have had the terms of this agreement

reduced to writing but did not.

On August 27, 2014, the circuit court entered an order granting Bragg’s Rule 37

petition, setting aside his sentence, and ordering him released from custody immediately. In

September 2014, the State sent a letter to the circuit court noting the Rule 37.3(c)

requirement of written findings of fact and conclusions of law. The prosecutor asked

whether the circuit court intended for Bragg’s counsel to submit proposed findings and

4 Cite as 2016 Ark. 242

conclusions. The State filed a notice of appeal on September 26, 2014.

The circuit court’s written findings of fact and conclusions of law were not entered

until May 19, 2015. In them, the court concluded that the sentence imposed was “in

violation of the Defendant’s federal and state constitution[al] [right] to a guilty plea that’s free

and voluntary.” The court found that the plea agreement in CR-2011-42 was intended to

resolve “all pending issues in existence at the time of the plea bargain,” which included the

second revocation petition.2 The court further found that the State knew or should have

known when it filed the information in CR-2011-42

that it could have also charged the Defendant with being a felon in possession of firearms, since the firearms were allegedly recovered from the residence where the Defendant was staying on December 30, 2010, well before the [plea] of guilty to the criminal information in case CR-2011-4[2] was made on May 18, 2011.

The court did not address the effectiveness of Bragg’s trial counsel, finding only that

“Attorney Wilson’s understanding was that the plea deal would take care of all of it.

Mr. Wilson so advised Defendant and the Defendant signed the plea statement after being so

advised by Attorney Wilson.” The State filed an amended notice of appeal on May 29, 2015.

Because this is neither a direct nor an interlocutory appeal following a prosecution, but

instead arises from a collateral proceeding, the appeal is civil in nature; therefore, the State is

not required to satisfy Arkansas Rule of Appellate Procedure–Criminal 3 (2015). See, e.g.,

State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007).

2 In fact, Bragg pleaded guilty in CR-2011-42 on May 18, 2011; the second revocation petition was not filed until July 29, 2011.

5 Cite as 2016 Ark. 242

However, as a threshold matter, Bragg submits that this court lacks jurisdiction to

decide the appeal because the State failed to lodge a timely record. The record was lodged

on August 5, 2015;3 therefore, while it was lodged within ninety days of the filing of the

amended notice of appeal on May 29, 2015, it was not lodged within ninety days of the filing

of the first notice of appeal on September 26, 2014. As Bragg points out, Arkansas Rule of

Appellate Procedure–Civil 5(a) (2015) provides that “[t]he record on appeal shall be filed with

the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing

of the first notice of appeal,” unless the time is extended.4 The record in this case contains

no motions or orders for extension of time.

The State responds that the circuit court’s August 27, 2014 order granting Rule 37

relief was not final because it did not contain written findings of fact and conclusions of law

as required by Rule 37.3(c). The State posits that the May 19, 2015 order, wherein the

circuit court set forth its findings and conclusions, was the final order; thus, the May 29, 2015

amended notice of appeal commenced the running of the ninety-day time period for lodging

the record under Rule 5(a). We disagree. It is true that Rule 37.3(c) requires written

findings of fact and conclusions of law, and we have held without exception that this rule is

mandatory. See, e.g., Beshears v. State, 329 Ark. 469, 947 S.W.2d 789 (1997) (per curiam).

3 The record itself states that it was filed on August 5, 2015, but our docket states that the record was lodged on July 28, 2015. 4 Pursuant to Arkansas Rule of Appellate Procedure–Criminal 4(a) (2015), except as otherwise provided, matters pertaining to the docketing of the record on appeal are governed by the Arkansas Rules of Appellate Procedure–Civil.

6 Cite as 2016 Ark. 242

However, we have not held that an order failing to make findings and conclusions is not final

for purposes of appeal. Rather than dismiss appeals from such orders for lack of finality, this

court routinely remands so that the requisite written findings may be made. See, e.g., id.;

Watkins v. State, 2010 Ark. 156, at 3, 362 S.W.3d 910, 914 (per curiam) (stating that, “[i]n

cases where the trial court fails to enter any written findings following a hearing, we have

consistently remanded the case to the trial court for fact-finding”). In this case, if the State

had lodged the record within ninety days of the filing of the September 26, 2014 notice of

appeal and the case had come to us before the circuit court’s entry of findings of fact and

conclusions of law on May 19, 2015, we certainly would have remanded for fact-finding

rather than dismissed the appeal. Alternatively, if the appeal had still been pending when the

findings and conclusions were entered, the State could have petitioned to supplement the

record with the findings and conclusions once they were entered. There was no need for the

State to wait to lodge the record.

The ninety-day period contemplated by Rule 5(a) begins to run from the filing of the

first notice of appeal. See, e.g., Conlee v. Conlee, 366 Ark. 342, 235 S.W.3d 515 (2006). We

have determined that such a deadline applies regardless of whether both parties file a notice

of appeal, or whether one party files more than one notice of appeal, as was the case here. See

id.; see also Smith v. State, 351 Ark. 325, 97 S.W.3d 380 (2002) (per curiam) (holding that

ninety days began to run from filing of first notice of appeal, which was effective to appeal

judgment, although a second notice of appeal added appeal from denial of posttrial motion).

It is true that Rule 5(a) contemplates a notice of appeal from a final judgment or order—in

7 Cite as 2016 Ark. 242

other words, not one subject to dismissal. See, e.g., Servewell Plumbing, LLC v. Summit

Contractors, Inc., 360 Ark. 521, 202 S.W.3d 525 (2005) (per curiam). However, for the

reasons previously stated, the State has not demonstrated a lack of finality in the August 27,

2014 order.

If a party fails to file the record within the ninety-day period provided under Rule 5(a),

the party’s appeal is dismissed. See, e.g., Conlee, 366 Ark. 342, 235 S.W.3d 515. This is

because the timely filing of the record on appeal is “a jurisdictional requirement to perfecting

an appeal.” Id. at 345–46, 235 S.W.3d at 518. Because the State failed to file the record in

this case within ninety days of the filing of the first notice of appeal, its appeal must be

dismissed.

Appeal dismissed.

Special Justices T. COLLIER MOORE and SHANNON L. BLATT join in this opinion.

WOOD and WYNNE, JJ., not participating.

Leslie Rutledge, Att’y Gen., by: Ashley Argo Priest, Ass’t Att’y Gen., for appellant.

Steven R. Davis, for appellee.