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Savage v. State

Court of Appeals of Arkansas, Division II

November 13, 2019

Keith SAVAGE, Appellant
STATE of Arkansas, Appellee

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[Copyrighted Material Omitted]

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         Hancock Law Firm, Little Rock, 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

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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 ...

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