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State v. Bragg

Supreme Court of Arkansas

June 9, 2016

STATE OF ARKANSAS, APPELLANT
v.
VANN BRAGG, APPELLEE

         APPEAL FROM THE PHILLIPS COUNTY CIRCUIT COURT [NO. CR-2009-198] HONORABLE L.T. SIMES II, JUDGE

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

          Steven R. Davis, for appellee.

          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 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 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 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 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 ...


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