Appeal from Clark Circuit Court; J. Hugh Lookadoo, Judge; affirmed. [296 Ark Page 378]
1. CRIMINAL PROCEDURE - PLEA BARGAINS - THE STATE MUST KEEP ANY BARGAIN MADE, BUT IT HAS THE RIGHT TO BACK OUT BEFORE THE PLEA IS ACCEPTED BY THE COURT. - The state must keep any bargain it has made, and if it does not the guilty plea may be withdrawn, but the state has the right to back out of any proposed plea bargain at any time before the guilty plea is accepted by the court.
2. CRIMINAL PROCEDURE - GUILTY PLEA - ERRONEOUS ADVICE CONCERNING PAROLE DOES NOT AUTOMATICALLY RENDER THE PLEA INVOLUNTARY. - Erroneous advice concerning parole eligibility does not automatically render a guilty plea involuntary.
3. CRIMINAL PROCEDURE - POST-CONVICTION RELIEF - CIRCUMSTANCES WHERE RELIEF PROPERLY DENIED. - Where the petition alleged that the state had promised appellant that he would not have to serve more than ten years on his life sentence, where the appellant received a letter from his attorney prior to entry of his guilty plea with an estimate of the average time served on a life sentence of from nine to fifteen years and stating that the eligibility for parole varied depending on the conduct of the prisoner and the policies of the Arkansas Department of Correction, where there was no flat promise that the appellant would be out in ten years in the record, where the appellant was twenty-one years old and had completed two years of college at the time of his guilty plea, where appellant had not denied his guilt or requested that his plea be vacated, and where there was nothing which indicated he would not be eligible for parole at some time in the future, perhaps within ten years, there was nothing in the record which required that the appellant be granted any relief and the trial court properly denied the petition.
The opinion of the court was delivered by: John I. Purtle, Justice.
The appellant filed a petition for post-conviction relief pursuant to A.R.Cr.P. Rule 37 in the Circuit Court of Clark County three years after pleading guilty to first degree murder. The appellant had agreed to plead guilty to first degree murder in exchange for the state reducing the charge from capital murder. The petition alleged that the state had promised Vagi that he would not have to serve more than ten years on his life sentence. After an evidentiary hearing on the petition, the trial court determined that it did not have the authority to order the state to release Vagi at the end of ten years. On appeal the appellant insists that the trial court did have the power to order the "contract" concerning his sentence specifically performed, and further that the appellant's Fourth Amendment rights had been violated. (We are uncertain as to how the Fourth Amendment is implicated in appellant's argument. We must surmise that the argument is based on the Due Process Clause of the Fourteenth Amendment.) For reasons stated below we hold that the decision of the trial court was correct.
The basic facts in this case are that Vagi was a hired trigger man in the murder of a Clark County resident. The victim's wife and an associate were both convicted of capital murder in separate trials. Both convictions were overturned and the cases retried. The appellant had cooperated in all of these trials and had furnished the information which was the basis for the conviction of the other two co-defendants. In exchange for the appellant's cooperation the prosecuting attorney agreed that if he would enter a guilty plea, the charge would be reduced to first degree murder. The evidence is conflicting as to whether the prosecutor in fact promised appellant that he would be paroled in seven to ten years. There is evidence that appellant's trial attorney at the time told him that he might get out in nine to fifteen years, but that, in any event, there would have to be a commutation of his sentence before he would be eligible for parole at all.
The proceedings concerning the plea and sentencing are quite clear. The appellant simply entered a guilty plea to first [296 Ark Page 379]
degree murder and was sentenced to life imprisonment. However, at the Rule 37 hearing the trial judge seemed to indicate that the appellant probably did not understand that his sentence would have to be commuted before he would become eligible for parole. There was also a discussion prior to entry of the guilty plea that both the prosecuting attorney and the sheriff usually must write letters recommending commutation of a sentence. The appellant insists that the prosecutor and sheriff agreed to write such letters prior to the plea agreement. They denied having made such promises. Furthermore, there is no indication that these letters will not be written.
Pursuant to A.R.Cr.P. Rule 37.4, if the court finds that the prisoner is entitled to relief, then the court "may set aside the original judgment, discharge the prisoner, resentence him, grant a new trial, or otherwise correct the sentence as may appear appropriate in the proceedings." The appellant contends that the court, after finding that he did not understand all the ramifications of his guilty plea, was authorized to "resentence" him. Without doubt the court has the power to "resentence" or "otherwise correct the sentence" when it is found that an error occurred in the proceedings. However, in the present case the court did not find that an error had occurred in the sentencing, Rather, the court found that it did not have the authority to enforce the agreement, if one existed, because such agreement involved the executive branch.
 The appellant's chief argument is that the state has failed to keep the agreement. In Hall v. State, 285 Ark. 38, 684 S.W.2d 261 (1985),we stated: "We agree the state must keep any bargain it has made, Santobello v. New York, 404 U.S. 257 (1971), and if it does not the guilty plea may be withdrawn. Mabry v. Johnson, 467 U.S. 504 (1984)." We reaffirmed this position in Caldwell v. State, 295 Ark. 149, 747 S.W.2d 99 (1988). There we upheld the right of the state to back out of any proposed plea bargain at any time before the guilty plea is accepted by the court. (Caldwell had accepted a plea offer but the new prosecutor had withdrawn the offer prior to acceptance by the court.)
The question presented in Mabry v. Johnson, supra, was "whether a defendant's acceptance of a prosecutor's proposed [296 Ark Page 380]
plea bargain creates a constitutional right to have the bargain specifically enforced." Mabry held that a plea bargain agreement standing alone is without constitutional significance. The United States Supreme Court stated that it is only after the bargain has been embodied in the judgment of the court that a constitutionally protected interest arises. In the words of Justice Stevens: "The Due Process Clause is not a code of ethics for prosecutors. . . ." Mabry.
The Santobello opinion is instructive in the case before us. Santobello had agreed to plead guilty to a lesser included offense in exchange for the prosecutor's promise to make no recommendation as to the sentence. The guilty plea was entered and a sentencing date set. Before sentencing, the trial judge retired and the new judge was told by the prosecutor that he recommended a sentence of one year in prison. Santobello objected to this recommendation. The new judge then announced that it didn't make any difference what the prosecutor recommended; that he was going to do the sentencing anyway and that in his opinion Santobello should serve time in the penitentiary. Certiorari was granted in order to determine whether the state's failure to keep the commitment concerning the sentence required a new trial. ...