APPEAL FROM THE DREW COUNTY CIRCUIT COURT, NO. CR-2012-37. HONORABLE ROBERT BYNUM GIBSON, JR., JUDGE.
Jeff Rosenzweig, for appellant.
Dustin McDaniel, Att'y Gen., by: Eileen W. Harrison, Ass't Att'y Gen., for appellee.
DONALD L. CORBIN, Associate Justice. BAKER and HART, JJ., dissent. KAREN R. BAKER, Justice, dissenting. HART, J., joins in this dissent.
DONALD L. CORBIN, Associate Justice.
Appellant, Daniel Pedraza, appeals the order of the Drew County Circuit Court imposing a sentence of life imprisonment rendered in a jury-sentencing proceeding that followed his guilty plea to murder in the first degree, a violation of Arkansas Code Annotated section 5-10-102 (Repl. 2013). As his sole point for reversal, Appellant contends that the circuit court erred in refusing to permit additional voir dire of the selected but unsworn jury after the plea agreement had been consummated. If this court reverses, Appellant further requests the disqualification of the circuit court judge for bias and the appearance of bias toward Appellant's counsel. Because this case involves a sentence of life imprisonment and because it is a subsequent appeal, Pedraza v. Circuit Court of Drew County, 2013 Ark. 116, 426 S.W.3d 441, jurisdiction is properly in this court pursuant to Arkansas Supreme Court Rule 1-2(a)(2) and (a)(7) (2013). We affirm.
Appellant was charged by amended information with the February 2012 capital murder of his two-year-old stepdaughter, Aubriana Coke. The State filed notice of the aggravating circumstances it would rely on in seeking the death penalty; namely, that the murder was committed against a person less than twelve years of age and in an especially cruel and depraved manner that brought Appellant pleasure.
Appellant was appointed death-qualified counsel who, at a June 11, 2012 pretrial hearing, requested a two-month continuance to allow an expert to examine Appellant for the purpose of obtaining mitigating evidence. Pedraza, 2013 Ark. 116, 426 S.W.3d 441. At a subsequent pretrial hearing on September 10, 2012, and again by written motion filed September 27, 2012, Appellant's counsel renewed the request for a continuance, citing trouble obtaining information to be used for mitigation purposes, such as (1) the military records of Appellant's year of service in combat in Iraq as a member of the Arkansas National Guard, (2) the military medical records concerning Appellant's possible Post Traumatic Stress Disorder, and (3) the potential testimony from family members who lived in Mexico. The
circuit court denied the continuance, and this court denied Appellant's subsequent petition for a writ of certiorari because an appeal was an adequate remedy for Appellant. In so doing, this court nevertheless acknowledged that defense counsel had an obligation to conduct a thorough investigation " to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor." Pedraza, 2013 Ark. 116, at 10, 426 S.W.3d 441, 447 (quoting Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)).
Jury selection for Appellant's trial began on Thursday, May 30, 2013. The circuit court placed strict time constraints and other restrictions on voir dire, and a jury was selected for this then capital-murder case in one day. On Friday morning, May 31, 2013, although the circuit court had excused the venire, the circuit court did not swear the jury because counsel for both sides had informed the court that they were in the process of plea negotiations. The circuit court, accordingly, granted a recess until Monday and instructed the selected but unsworn jury to return at that time.
Over the weekend both sides did, in fact, reach a plea agreement. The State agreed to waive the death penalty and reduce the charge to first-degree murder, while Appellant agreed to plead guilty to first-degree murder and be sentenced by the jury. Appellant appeared in court on Saturday, June 1, 2013, and the circuit court accepted his guilty plea.
On Monday, June 3, 2013, the State filed a second amended information charging Appellant with first-degree murder. As part of the plea bargain, Appellant agreed to waive any and all errors that had occurred up to that time. Thus, also on June 3, 2013, Appellant filed a written statement of waiver stating that
having elected to accept the State's offer to plead guilty to the charge of first degree murder following jury selection on May 31, 2013, for a trial on the charge of capital murder, [he] hereby waives and relinquishes appellate review as to all objections, motions, and other issues decided adversely to him prior to his guilty plea, reserving, however, the right of appeal as to any error which may occur in his jury sentencing for the offense of first degree murder.
When the selected, but not yet sworn, jury appeared on Monday morning, Appellant sought to ask or to have the circuit court ask the jurors, additional questions concerning the change in circumstances that had occurred over the weekend. The circuit court denied the request, and the sentencing trial began. After the jury had heard evidence and argument over two days, the jury sentenced Appellant to life imprisonment. This appeal followed.
For reversal of his sentence of life imprisonment, Appellant contends that the circuit court committed constitutional error and abused its discretion in denying his request to conduct additional voir dire of the selected but unsworn jury after Appellant had pleaded guilty to a lesser charge. Appellant sought to determine whether the plea developments had rendered any selected but unsworn jurors to no longer be qualified, and he proffered to the court a brief statement and three specific questions concerning the reduction in the charge and the differing ranges of punishment. Appellant contends that these proffered questions would have elicited from the jurors whether any of them would be biased against him because he had pleaded guilty to the lesser offense of first-degree murder. Appellant asserts that the circuit court's denial of this additional
voir dire of the unsworn jurors violated his fundamental rights to a fair and impartial jury and to due process of law under the Sixth and Fourteenth Amendments to the United States Constitution, as well as sections 10 and 8 of article 2 of the Arkansas Constitution. In addition, Appellant alleges that a violation of Rule 32.2 of the Arkansas Rules of Criminal Procedure occurred.
The State first responds that the issue raised here by Appellant is not appealable because the acceptance of the selected jury was a condition of the plea agreement. " We indeed do not allow appeals from guilty pleas when the appeal alleges an error having to do with an integral part of the plea and its acceptance by a trial court." Hodge v. State, 320 Ark. 31, 33, 894 S.W.2d 927, 929 (1995). However, the record here simply does not support the State's contention that " the issue of reopening voir dire was inextricably linked to the plea agreement because the parties had stipulated that the jury, which had already been impaneled, was qualified to pronounce sentence." The written statement of waiver that Appellant filed does not include any such stipulation by the parties, and there is no mention of such stipulation in the colloquy between counsel and the circuit court. While the circuit court did state that it wanted an agreement that the same jury would be used, the record simply does not bear out the State's contention that the parties stipulated to the qualifications of the selected but unsworn jurors to pronounce sentence on the reduced charge of first-degree murder. Moreover, the circuit court accepted Appellant's plea in open court without such express stipulation or any discussion of the matter and without objection from the State. Therefore, contrary to the State's assertion otherwise, ...