MICHAEL L. BURGESS APPELLANT
STATE OF ARKANSAS APPELLEE
APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CR-10-4135] HONORABLE BARRY SIMS, JUDGE
Baker, J., joins in this dissent. Kent C. Krause, Deputy Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.
Leslie Rutledge, Att'y Gen., by: Brooke Jackson, Ass't Att'y Gen., for appellee.
PAUL E. DANIELSON, Associate Justice
Appellant Michael L. Burgess appeals the Pulaski County Circuit Court's denial of his request for jail-time credit against his sentence of imprisonment. On appeal, Burgess argues that he is entitled to the credit pursuant to statute. This case was certified to this court from the Arkansas Court of Appeals in accordance with Arkansas Supreme Court Rule 1-2(d) (2015), on the basis that it presents a significant issue needing clarification or development of the law and a substantial question of law concerning the interpretation of an act of the General Assembly. See Ark. Sup. Ct. R. 1-2(b)(5) & (6) (2015). We affirm.
Burgess was charged in June 2011 with one count of misdemeanor domestic battering in the third degree and three counts of felony terroristic threatening in the first degree. He pleaded guilty to all charges and was placed on one year's probation for the misdemeanor and five years' probation for the felonies. He was also ordered to pay a fine and court costs, complete domestic-violence classes, and submit to random drug screens. Furthermore, as a condition of his five years' probation for the felonies, Burgess was ordered to serve 120 days' confinement in the Pulaski County Jail.
In November 2012, the State filed a petition to revoke Burgess's probation on the grounds that he had failed to report, failed to pay supervision fees, failed to pay his fine and court costs, and failed to provide his supervising officer with his current contact information. Burgess entered a plea of guilty, and the circuit court ordered him to return to the original terms of his probation. Accordingly, he was placed on forty-six months' probation and ordered to pay a fine and court costs.
In September 2014, the State filed a second petition to revoke Burgess's probation, alleging that he had again failed to report and failed to pay his fine and court costs and that he had also failed to complete domestic-violence classes as ordered and had two positive drug screens. Burgess again entered a plea of guilty. Pursuant to an agreement between the parties, the circuit court sentenced Burgess to thirty-six months' imprisonment in the Arkansas Department of Correction on the three felony counts of first-degree terroristic threatening. At the plea hearing, a dispute arose over the amount of jail-time credit to which Burgess was entitled. The defense asserted that Burgess was entitled to 125 days, which included the 120 days he had previously served in confinement when he was first placed on probation. The circuit court initially stated that it would award Burgess 125 days' jail-time credit, but the State then objected, arguing that Burgess was not entitled to credit for the 120 days' confinement. The circuit court set the matter for a later hearing.
At a hearing on April 6, 2015, Burgess's counsel argued that he was entitled to jail-time credit for the 120 days' confinement in accordance with Arkansas Code Annotated section 5-4-404 (Repl. 2013). The State responded that the statute provides for credit for pretrial incarceration, not confinement imposed as a condition of probation. The circuit court rejected Burgess's argument, stating, "He's got a new 36 months so he doesn't get credit for what he has done before this new judgment." The circuit court ultimately awarded Burgess thirty-one days' jail-time credit to account for the time he spent incarcerated between his arrest and the final hearing. Burgess filed a timely notice of appeal from the sentencing order.
As his sole point on appeal, Burgess contends that the circuit court erred in failing to award him jail-time credit against his three-year sentence for the 120 days he spent in confinement when he was originally placed on probation. He maintains that section 5-4-404, along with Arkansas Code Annotated section 16-93-309(c) (Supp. 2015), both provide for jail-time credit for time served in confinement as a condition of probation. In response, the State argues that section 5-4-404 concerns time served in pretrial incarceration, while section 16-93-309(c) concerns time served in incarceration following the revocation of probation; thus, neither is applicable here.
As a threshold matter, the State submits that Burgess's appeal is an improper attempt to appeal from his plea of guilty to the State's second revocation petition. Arkansas Rule of Appellate Procedure–Criminal 1(a) (2015) provides that "there shall be no appeal from a plea of guilty or nolo contendere." See Canada v. State, 2014 Ark. 336, 439 S.W.3d 42 (per curiam). The rule provides an exception, not applicable here, for conditional pleas of guilty pursuant to Arkansas Rule of Criminal Procedure 24.3(b). Two additional exceptions to the general rule are (1) when there is a challenge to testimony or evidence presented in a sentencing hearing separate from the plea itself, and (2) when the appeal is from a posttrial motion challenging the validity and legality of the sentence itself. See id.; Nelson v. State, 2012 Ark. 217 (per curiam). Absent one of the exceptions, a defendant waives his right to appeal when he pleads guilty. See Nelson, 2012 Ark. 217.
Burgess contends that an exception is applicable here-namely, that he is appealing from the denial of a postjudgment motion challenging the validity and legality of his sentence. As he points out, this court has previously permitted a defendant who pleaded guilty to appeal from the denial of a postjudgment motion for jail-time credit. See Jones v. State, 301 Ark. 510, 785 S.W.2d 217 (1990). In a supplemental opinion on denial of rehearing in Jones, we specifically rejected the State's argument that the appeal was an improper attempt to appeal from a guilty plea. See Jones v. State, 301 Ark. 510, 512-A, 789 S.W.2d 730, 730 (1990) (per curiam) (supplemental opinion on denial of rehearing). We held that the defendant's motion for jail-time credit, filed eighteen days after his guilty plea, was timely, and that "we had appellate jurisdiction to decide the correctness of the trial court's decision." Id. at 512-A, 789 S.W.2d at 731.
The State responds that the instant case is distinguishable from Jones because Burgess did not file a postjudgment motion for jail-time credit. Instead, he requested the credit during his guilty plea hearing. According to the State, this case is more akin to Kennedy v. State, 2013 Ark.App. 140, wherein a defendant requested jail-time credit at his plea hearing, before pleading guilty. The court of appeals dismissed the appeal, stating as follows:
Appellant's appeal does not fall within any of the exceptions allowing an appeal from a guilty plea. He . . . did not file a posttrial motion to modify his sentence. Unlike the defendant in Jones, the jail-time credit case in which the supreme court allowed an appeal from a guilty plea, appellant did not file a posttrial motion to modify his sentence. Rather, he requested jail-time credit at the beginning of his plea hearing. After discussion of the issue and a ruling by the judge from the bench that he was denying appellant's request for the additional jail-time credit, the court continued with the plea hearing, and appellant pleaded guilty in all four cases. This is not an appeal from the decision on a posttrial motion. The denial of jail-time credit was an integral part of the acceptance of appellant's guilty plea.
Id. at 3–4. The State relies on Kennedy in support of the proposition that, under Jones, a postjudgment motion requesting jail-time credit is required to appeal from a guilty plea. Burgess disagrees, pointing out that Jones did not directly address situations like this one, where no postjudgment motion was filed. He argues that an opinion is precedent only on issues that were actually presented for decision. See, e.g., McLeod v. Shaver, 198 Ark. 56, 127 S.W.2d 258 (1939). Burgess also argues that the Kennedy analysis is inapplicable here because his ...