[Copyrighted Material Omitted]
FROM THE YELL COUNTY CIRCUIT COURT, SOUTHERN DISTRICT [NO.
75SCR-16-47], HONORABLE JERRY D. RAMEY, JUDGE
Law Firm, Little Rock, by: Alex R. Burgos, for appellant.
Rutledge, Atty Gen., by: Karen Virginia Wallace, Asst Atty
Gen., for appellee.
Savage appeals the Yell County Circuit Courts decisions to
deny his motion to enforce an agreement not to prosecute and
to admit laboratory reports over his objection. We affirm.
August 9, 2016, the prosecuting attorney for the the Yell
County Circuit Court filed a felony information against
Savage charging him with three counts of threatening a
judicial officer, a class B felony. On March 2, 2017, Savage
entered a guilty-plea statement and waived his right to a
jury trial. The same day, Savage was placed on probation for
a period of ninety-six months, fined $1000, and assessed $150
State filed the first petition to revoke Savages probation
on June 14, 2017, due to his failure to report for a
scheduled office visit, failure to report a change of
address, and evasion of supervision. On October 5, 2017, the
prosecuting attorney nolle prossed the petition.
November 28, 2017, the prosecution filed another petition to
revoke the probated sentences based on Savages failure to
report, failure to report a change of address, evasion of
supervision, failure to pay fees, and "numerous criminal
federal charges." On January 4, 2018, Savage waived
formal arraignment and pleaded not guilty.
April 2, 2018, the prosecutor filed a motion for nolle
prosequi. During the hearing, the circuit court clarified
that the petition to revoke would be nolle prossed, "and
there is going to be an agreement to Act 423, sanctioned by
the probation officer" and that "as a part of this,
Mr. Savage is waiving the request for a hearing on 423 to the
circuit court?" Savages attorney agreed that "as a
condition of the non pros he is going to be sanctioned under
423 by probation, and he is waiving the hearing." The
court order for nolle prosequi was entered the same day.
April 24, 2018, the State refiled the petition to revoke
Savages probation. The only change to the petition was in
the description of the "numerous criminal federal
charges," which now set forth "[t]he defendant was
included in a federal indictment for the violation of Title
21, United States Code, section 841(a)(1), and Title 21,
United States, Code Section 841(b)(1)(A)[.]"
July 5, 2018, Savage filed a motion to enforce the agreement
and to dismiss the felony information. Savage contended
that the States April 24 refiling of the petition to revoke
violated his due-process rights because the State offered the
agreement not to prosecute, and in exchange, Savage agreed to
subject himself to administrative sanctions under Act 423,
and he waived his right to a revocation hearing; thus, he
detrimentally relied on the agreement. Savage also noted
that on April 2, the States main witness— a
drug-task-force agent who would have provided testimony
regarding the search of Savages home and seizure of evidence
that led to the federal charges— was unavailable.
Savage alleged that the State "used trickery to obtain
an unfair advantage[.]" The State responded that there
was no agreement not to prosecute and that because Savage had
never been sanctioned according to Act 423, he had not relied
on any agreement to his detriment; thus, he could not show
prejudice. The State contended that it exercised the option
to refile pursuant to a "standard nolle pros." The
State also requested a continuance and explained that a
necessary witness— the same drug-task-force agent who
had been unavailable on April 2— was again unavailable.
The court granted the continuance to August 2.
August 2 hearing, Savage explained that on April 2 he was
ready to proceed, but the State did not have the
drug-task-force agent there to testify about the new federal
charges against him. The new federal charges were stated as a
ground for revocation, and so the State agreed to sanction
Savage administratively under Act 423, and nolle pros the
charges. As a part of the agreement, Savage waived his right
to request a hearing. Savage asserted that he proved that
there was an agreement and that he acted to his detriment in
relying on the agreement; specifically, part of the agreement
was that he would be committed to "jail days," and
he suffered prejudice as a result because he gave up the
right to call witnesses and cross-examine the States
witnesses. Savage contended that the State reneged on the
agreement when it refiled the petition to revoke less than a
State responded that Savage did not offer evidence that there
was an agreement, that he acted to his detriment, or that he
suffered prejudice by the States actions. The State
contended that there was no agreement between the parties
that Savage would forgo his right to a bench trial and that a
nolle prosequi was not an unconditional dismissal of the
charges. The State contended that when a defendant accepts a
plea offer, "you go through those and make sure they
understand what they are doing. If this had been reversed,
and we were trying to enforce this as an agreement, hes not
waived any constitutional rights. He stands before the court
today just like it was his first time. Hes given up
nothing." The State asserted that "the agreement
they want enforced, nobody can seem to agree what it was,
because it was not written down. If he wanted to put
something on the record to make sure that he waived the
rights and he was prejudiced, then that was their opportunity
to do that in front of you. But that is not what we agreed to
do because there was no agreement." The State summarized
that "there was a determination made that we couldnt go
forward at the time with one of the issues before this
court" and as a result, the State nolle prossed the
petition to revoke to refile later.
responded that he gave up the right to appeal the ...