FROM THE GARLAND COUNTY CIRCUIT COURT [NO. CR2016-22-IV]
HONORABLE MARCIA R. HEARNSBERGER, JUDGE
Garrett and Penhallegon, Attorneys at Law, PLLC, by: Timothy
Penhallegon, for appellant.
Rutledge, Att'y Gen., by: Christian Harris, Ass't
Att'y Gen., for appellee.
K. WOOD, Associate Justice
a guilty plea, Justin Burns was sentenced to life in prison.
He now appeals a pre-plea denial of a motion for continuance.
However, Burns's appeal does not fall within the limited
circumstances under which we may hear appeals following pleas
of guilty. We accordingly lack jurisdiction to consider his
argument and must dismiss the appeal.
was charged with rape under Arkansas Code Annotated section
5-14-103(a)(3)(A) (Repl. 2013). The circuit court appointed the
public defender to represent Burns. On October 24, 2016,
Burns appeared to enter his plea. The plea agreement provided
that a jury would determine Burns's sentence. In the
court's chambers before the proceeding started,
Burns's attorney told the court that Burns wanted a
continuance so he could hire private counsel. The court
denied the request, noting that the case had been pending
since February 2016 and that Burns had made four prior
appearances in court. The exchange, in toto, was as
Mr. Fraiser: Judge, before we get into that, if we could, Mr.
Burns asked me-and I told him I would do this-he wants me to
orally request a continuance so he can hire private counsel.
The Court: We're not gonna [sic] do that, Mr.
Burns. This case has been pending since February of 2016. You
requested the Public Defender, I appointed the Public
Defender. You've been here April 19th, June 21st, July
19th, September 13th, so it's too late for that.
court then proceeded to review the plea agreement with Burns.
Burns acknowledged that he understood the agreement and had
discussed it with his attorney. A document entitled
"Plea and Waiver" was entered of record. This
document, which Burns signed, provided "[t]hat, by
entering a plea of guilty herein, he/she waives and gives up
. . . his/her right to appeal his/her conviction
sentencing trial then took place in front of a jury. The
State presented a number of witnesses, including the victim.
Burns chose not to testify, and no other witnesses testified
in his defense. The jury ultimately sentenced Burns to life
in prison. Burns has now brought this appeal.
sole argument on appeal is that the circuit court wrongly
denied him his constitutional right to choice of counsel when
it denied his continuance. We must dismiss the appeal because
Burns's appeal is an improper appeal from a guilty plea.
Rule 1(a) of the Arkansas Rules of Appellate
Procedure-Criminal provides that "[e]xcept as provided
by [Ark. R. Crim. P. 24.3(b)] there shall be no appeal from a
plea of guilty." See also Reeves v. State, 339
Ark. 304, 5 S.W.3d 41 (1999); Seibs v. State, 357
Ark. 331, 166 S.W.3d 16 (2004). Rule 24.3 permits a defendant
to enter a conditional plea, which reserves the right to
appeal the denial of a motion to suppress; the denial of a
motion to dismiss for violation of speedy trial; and the
denial of a motion to dismiss based on an unconstitutional
statute. In addition to this, we have also allowed appeals
from unconditional guilty pleas if the defendant challenges
the legality of the sentence itself or if the defendant
challenges the admission of evidence during sentencing.
Bradford v. State, 351 Ark. 394, 94 S.W.3d 904
(2003); Hill v. State, 318 Ark. 408, 414, 887 S.W.2d
275, 278 (1994) (permitting appeal from sentencing hearing
because it "involve[d] nonjurisditional matters that
occurred subsequent to [the] guilty plea")
(emphasis added). Absent one of the exceptions, a defendant
waives his right to appeal when he pleads guilty. Burgess
v. State, 2016 Ark. 175, at 4, 490 S.W.3d 645, 648.
did not enter a conditional guilty plea. Nor has he
challenged the legality of the sentence or the admission of
evidence during his sentencing trial. Rather, he maintains
that the court unconstitutionally deprived him of his right
to choice of counsel. For support, he relies on two cases:
Thorne v. State, 269 Ark. 556, 601 S.W.2d 886
(1980), and Arroyo v. State, 2013 Ark. 244, 428
S.W.3d 464. Yet both of those cases involved convictions by a
jury following a trial. Thorne, 269 Ark. at 557, 601
S.W.2d at 887; Arroyo, 2013 Ark. 244, at 1, 428
S.W.3d at 466.
only do our rules and case law prohibit appeals from a guilty
plea, but Burns specifically acknowledged he was waiving his
right to appeal. The "Plea and Waiver" document,
which Burns signed, contained an appeal waiver. Moreover,
during a colloquy with Burns, the court informed him that his
guilty plea resulted in a waiver of his constitutional
rights. Burns cannot go back on those waivers now. We must
therefore dismiss this appeal for lack of jurisdiction.
See Seibs, 357 Ark. at 335, 166 S.W.3d at 18;
Tabor v. State, 326 Ark. 51, 930 S.W.2d 319 (1996);
Hewitt v. State, 362 Ark. 369, 208 S.W.3d 185 (2005)
Burns received a sentence of life in prison, the record has
been reviewed for all errors prejudicial to Burns under
Arkansas Supreme ...