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Cartwright v. State

Court of Appeals of Arkansas, Divisions I, II

February 22, 2017

JUSTIN CARTWRIGHT APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CR-15-108-2] HONORABLE ROBERT H. WYATT, JR., JUDGE DISMISSED.

          Potts Law Office, by: Gary W. Potts, for appellant.

          Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

          ROBERT J. GLADWIN, Judge.

         Appellant Justin Cartwright appeals the April 27, 2016 sentencing orders of the Jefferson County Circuit Court pursuant to which he was sentenced to a total of 696 months in the Arkansas Department of Correction (ADC). He argues that the trial court abused its discretion in failing to follow the sentencing mandates of Arkansas Rule of Criminal Procedure 25 (2016). We dismiss.

         Appellant was charged in case no. CR-2015-103 with two counts of aggravated robbery, possession of a firearm by certain persons, and theft by receiving. In case no., CR-2015-108, he was charged with escape and second-degree battery. Negotiations led to a plea agreement providing that if appellant entered a plea of guilty to all charges, the State would recommend that he be sentenced to twenty years in the ADC on all counts in the first case with another six years concurrent on the charge of second-degree battery in the second case. These would be served concurrently with the ADC sentence appellant was then serving from a prior conviction. In addition, appellant would be required to testify truthfully against codefendant Corderro Foster at Foster's jury trial that was scheduled to take place by February 10, 2016.

         On February 5, 2016, appellant entered guilty pleas in the above-described cases, and in open court with counsel present and participating, appellant provided a factual basis for the charges and admitted guilt to the trial court. The trial court found the plea to be knowing and voluntary and also found a factual basis for the plea. The trial court acknowledged appellant's counsel's explanation that appellant was required to testify truthfully against Foster as part of the plea agreement and asked appellant if he was aware of his obligations in order to get his "guaranteed sentence." Appellant responded in the affirmative. The trial court then accepted appellant's guilty plea but deferred sentencing until "at least February 10th, " presumably subsequent to the conclusion of Foster's jury trial.

         On March 4, 2016, at the deferred sentencing proceeding, the State explained to the trial court that appellant's testimony at Foster's trial was the complete opposite of what his counsel had previously led the State to expect. Appellant testified that another individual on the evidence videos had assisted him in the robberies rather than Foster. As a result, the State moved to withdraw its plea offer. Although defense counsel argued that appellant testified truthfully, the trial court allowed the State to withdraw its sentencing recommendation, stating,

I did not accept any type of recommendation from the State. All I accepted was the guilty plea from [appellant] based on what [appellant] did during the aggravated robbery and during the escape. So, [appellant] has been found guilty by the Court. And now the State is withdrawing their recommendation. So, [appellant] will be sentenced by the Court without a recommendation from the State. Do you have anything you want me to consider before I pronounce sentence?

         Appellant's attorney responded that appellant admitted his involvement and requested that appellant receive the same sentence that Foster received at trial. Appellant made no attempt to withdraw his guilty plea.

         The trial court sentenced appellant to 600 months in the ADC on each count of aggravated robbery, 180 months for possession of a firearm, and 96 months for theft by receiving, all set to run concurrently, in case no. CR 2015-103. In case no. CR 2015-108, the trial court sentenced appellant to 300 months for escape and 96 months for second-degree battery, running concurrent to each other but consecutive to case no. CR 2015-103. All sentences would be consecutive to the sentence that appellant was already serving in the ADC.

         A decision to allow alternative sentencing is reviewed for an abuse of discretion. Steele v. State, 2014 Ark.App. 257, 434 S.W.3d 424. This standard is a high threshold and requires that a trial court act improvidently, thoughtlessly, or without due consideration. Id.

         Appellant argues that the trial court abused its discretion in failing to follow the sentencing mandates of Arkansas Rule of Criminal Procedure 25. Specifically, appellant argues that the sentencing orders should be reversed and remanded for resentencing or dismissed because the trial court was in violation of Arkansas Rule of Criminal Procedure 25.3(c), which sets forth the responsibilities of the trial judge concerning plea agreements:

If the parties have not sought the concurrence of the trial judge in a plea agreement or if the judge has declined to indicate whether he will concur in the agreement, he shall advise the defendant in open ...

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