APPEAL FROM THE OUACHITA COUNTY CIRCUIT COURT. NO. CR-12-160. HONORABLE EDWIN KEATON, JUDGE.
Hurst, Morrissey & Hurst, PLLC, bye: Q. Byrum Hurst, Jr., for appellant.
Dustin McDaniel, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.
COURTNEY HUDSON GOODSON, Associate Justice
Appellant Cody Lee Martin appeals the order entered by the Ouachita County Circuit Court denying his motion to set aside his plea of nolo contendere to a single count of sexual assault in the first degree. For reversal, Martin contends that the circuit court erred and abused its discretion by not permitting him to withdraw his plea. We affirm the circuit court's decision.
By an amended felony information, the prosecuting attorney of Ouachita County charged Martin with three counts of sexual assault in the first degree, a violation of Arkansas Code Annotated section 5-14-124(a)(1)(C) (Repl. 2013). Pursuant to the referenced statute, a person commits this offense if the person engages in sexual intercourse or deviate sexual activity with a minor who is not the actor's spouse and
the actor is a person in a position of trust or authority over the victim. Ark. Code Ann. § 5-14-124 (a)(1)(C). According to the probable-cause affidavit, Martin, an agriculture teacher at Camden Fairview High School, engaged in an ongoing sexual relationship with a student, which began when the victim was fourteen years old. During the course of the proceedings, the prosecution filed a motion stating its intent to introduce evidence of Martin's prior sexual advances toward other underage females pursuant to Rule 404(b) of the Arkansas Rules of Evidence.
After several continuances, the circuit court scheduled a trial date for May 21, 2013. As a result of negotiations, the parties entered into a plea agreement filed on May 17, 2013. In it, while maintaining his innocence of the charges, Martin agreed to enter an Alford plea to one count of sexual assault in the first degree, and in exchange, the prosecution agreed to recommend a sentence of eight years in prison and to dismiss the remaining two counts of first-degree sexual assault. At the plea hearing held on May 17, 2013, defense counsel stated that he had advised Martin that each offense carried a maximum sentence of thirty years in prison. Counsel explained that, although Martin did not admit guilt, Martin had agreed that, given the strength of the State's evidence, it was in his best interest to enter an Alford plea to one count of first-degree sexual assault, as opposed to taking the risk of a jury finding him guilty of all three counts and of his receiving a sentence greater than the recommended eight-year term of imprisonment. After the circuit court expressed the opinion that an Alford plea entails entering a guilty plea, the following exchange occurred between the court and defense counsel:
THE COURT: But the plea has to be guilty pursuant to Alford, rather than run the risk of taking it to trial. Alford is a guilty plea.
I mean what he's saying under Alford is a person will decide to plead guilty and take the plea agreement rather than run the risk of going to trial where he could face greater penalties. The Court doesn't have to ask him to say what he did. The State will offer that version of proof. But it's actually a guilty plea.
Defense Counsel: Your Honor, our agreement was that he would not be required to admit that he committed sexual assault in the first degree. Now whether that's under Alford or a no contest, that doesn't really matter. But what he's not prepared to do is to admit that he committed the offense of sexual assault in the first degree.
He's willing to accept the fact that the State has sufficient evidence from which the jury could make that finding, and rather than undertake that risk-- and I've already said all of ...