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Lee v. State

Court of Appeals of Arkansas, Division IV

February 14, 2018

TERRY D. LEE, JR. APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE DESHA COUNTY CIRCUIT COURT, ARKANSAS CITY DISTRICT [NO. 21ACR-17-12] HONORABLE STEVEN PORCH, JUDGE

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

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

          ROBERT J. GLADWIN, Judge

         Appellant Terry Lee, Jr., appeals the June 5, 2017 sentencing order entered by the Desha County Circuit Court. Specifically, he appeals the increase of his sentence that resulted from a hearing on a negotiated plea agreement from thirty-six months to twelve years-and then from twelve years to twenty years in the Arkansas Department of Correction (ADC). Appellant claims that the trial court abused its discretion when it refused to allow him to withdraw his plea after it had amended his entered plea agreement and when it increased his sentence in response to appellant's actions in the courtroom that constituted contempt of court. We affirm in part and dismiss in part.

         I. Facts

         Appellant was charged with the Class C felony offense of domestic battering in the second degree, subject to not less than three years nor more than twenty years as a habitual offender and up to a $10, 000 fine. Appellant and his appointed counsel initialed, signed, and completed a plea statement establishing that appellant was aware of his rights and the plea process. Included in the document was a sentence recommendation signed by the deputy prosecuting attorney reflecting that if appellant pled guilty, the State would recommend thirty-six months in the ADC with an additional sixty months' suspended sentence, along with fines and costs.

         A plea hearing was held on June 5, 2017. Appellant was present with his appointed attorney, along with the Tenth Judicial District's deputy prosecutor. Appellant expressed to the trial court that he desired to take the plea and did not want to proceed to trial. Appellant acknowledged that he was aware of his right to a trial and that he was not forced to give up that right. However, he also explained that he could not remember the details of his criminal act sufficient to establish a factual basis for the plea. The State proffered what the anticipated testimony would be at trial from the case summary provided by McGehee police officer Jonathan Burgess, as set forth in his case file, which also included a statement from the victim, appellant's then girlfriend, Asia Davis.

         Before accepting his plea, the trial court asked appellant if he would like to change his plea from guilty to no contest. The trial court explained that a plea of no contest meant that appellant was not going to challenge the State's evidence; the State would proffer the evidence it would present at trial; and the trial court would make the determination if there was enough evidence to convict.

         The trial court reviewed the plea agreement and reiterated to appellant that he could receive twenty years on "this thing, " and was getting three years pursuant to the agreement, plus an additional five years' suspended imposition of the sentence. The trial court said, "As I stated before, I find that there is a factual basis for your plea." The trial court then inquired of the State whether the victim was appellant's girlfriend and whether they were possibly back together. After hearing from appellant that they were not "together" but were in communication, the trial court again asked appellant if he had been too drunk to remember that night. Appellant indicated that he remembered some things, but acknowledged that he had been intoxicated. The trial court then stated, "Yeah, I've already taken your plea, and I've accepted your plea. Tell me what you do remember." Appellant answered:

I really don't. I-I really-I don't-I don't really remember anything, really, too much. I came home-I don't know. I just blacked out, I guess. I really don't remember, and I don't even know why. It was-it started with an argument, not dealing with-it started with an argument and transformed to that, you know what I'm saying, transformed to something else into that. I flat done lost it. I don't remember too much though.
And the table leg; they say such-and-such said this about a table leg. Who was there even to say I did anything with the table leg? I'm just-I was just furious. She the only one there.

         The trial court responded,

I'm going to tell you what I'm thinking right now. I'm thinking three years is too low. And if you can be that intoxicated and beat the hell out of somebody with a table leg, whatever personal problems she may have, that's on her. But to come home and to do that, whether intoxicated or not - and intoxication is not a defense in the State of Arkansas - is a problem. And in my opinion, you're smiling too much about it.

         The trial court further questioned appellant about why he was currently incarcerated and what programs he had completed in the ADC. The trial court asked again if appellant understood that the trial court was not required to carry out the sentence agreed on by the defense counsel and prosecuting attorney and that the power of sentencing rested solely in the trial court.

         The trial court inquired about appellant's prior record and looked at the photographs of the victim taken after she had been beaten with the table leg. The trial court announced that appellant would be sentenced to twelve years' imprisonment in the ADC. Appellant's counsel immediately asked the trial court if she could have the opportunity to ask appellant if he would like to withdraw his no-contest plea. The trial court stated that the plea had already been ...


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