APPEAL
FROM THE YELL COUNTY CIRCUIT COURT, SOUTHERN DISTRICT [NO.
75SCR-16-47] HONORABLE JERRY D. RAMEY, JUDGE
Hancock Law Firm, by: Alex R. Burgos, for appellant.
Leslie
Rutledge, Att'y Gen., by: Karen Virginia Wallace,
Ass't Att'y Gen., for appellee.
BART
F. VIRDEN, JUDGE.
Keith
Savage appeals the Yell County Circuit Court's decisions
to deny his motion to enforce an agreement not to prosecute
and to admit laboratory reports over his objection. We
affirm.
I.
Relevant Facts
On
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
in costs.
The
State filed the first petition to revoke Savage's
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.
On
November 28, 2017, the prosecution filed another petition to
revoke the probated sentences based on Savage's 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.
On
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?" Savage's 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.
On
April 24, 2018, the State refiled the petition to revoke
Savage's 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)[.]"
On July
5, 2018, Savage filed a motion to enforce the agreement and
to dismiss the felony information. Savage contended that the
State's 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. [1] Savage also noted
that on April 2, the State's main witness-a
drug-task-force agent who would have provided testimony
regarding the search of Savage's 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.
At the
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 State's
witnesses. Savage contended that the State reneged on the
agreement when it refiled the petition to revoke less than a
month later.
The
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 State's 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, he's
not waived any constitutional rights. He stands before the
court today just like it was his first time. He's 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
couldn't 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.
Savage
responded that he gave up the right to appeal the sanctions,
which is set forth in Act 423, and that "whatever
probation came down with, be it one day or 180 days, he was
going to take and not appeal. He had an absolute right to do
so, and he gave up that right." Savage asserted that
"this simply turned into a continuance for the State to
directly refile the exact same petition."
The
court determined that there was no "meeting of the
minds" between Savage and the State. The court explained
that "when Act 423 came, it threw everybody into a state
of flux because there it is and you got to start using it,
and nobody knew how to use it." After reviewing Act 423,
the court concluded that
for Act 423 to apply, if it's somebody that was on
probation prior to [October 1, 2018] we then would have some
discretion on whether they wanted to use the Act or not.
However, the prosecuting attorney was given the ability to
direct file under three circumstances: (1) if there are new
charges, new allegations; (2) if the individual is special
designation, a special purpose. And that is very broad
because that it was the prosecutors to say in this particular
individual has six other felonies which included violence. So
that gave the prosecutors the ability to kind of tailor the
special designation element in order to direct file. Third,
if they became a fugitive. On each of these petitions, the
one that was filed June 14, 2017, that was dismissed for
compliance. That one that was filed November 28, 2017, and
the other that was filed on April 24, 2018. All of those have
the designation of "whereabouts unknown" because it
was in there that he was not reporting. He was not at the
residence he was supposed to be at, which makes the
individual a fugitive, and provides the State to direct file.
When they have the ability to direct file, that means he did
not have the privilege, so to speak, of Act 43.
The
court denied Savage's motion, determining that Act 423
did not apply under these circumstances and that ...