                                 Cite as 2017 Ark. App. 100


                 ARKANSAS COURT OF APPEALS
                                     DIVISIONS I & II
                                      No. CR-16-740


                                                 OPINION DELIVERED: FEBRUARY 22, 2017
JUSTIN CARTWRIGHT
                                APPELLANT APPEAL FROM THE JEFFERSON
                                          COUNTY CIRCUIT COURT
                                          [NO. 35CR-15-108-2]
V.
                                                 HONORABLE ROBERT H.
                                                 WYATT, JR., JUDGE
STATE OF ARKANSAS
                                   APPELLEE DISMISSED




                             ROBERT J. GLADWIN, Judge

        Appellant Justin Cartwright appeals the April 27, 2016 sentencing orders of the

 Jefferson County Circuit Court pursuant to which he was sentenced to a total of 696 months

 in the Arkansas Department of Correction (ADC). He argues that the trial court abused its

 discretion in failing to follow the sentencing mandates of Arkansas Rule of Criminal

 Procedure 25 (2016). We dismiss.

        Appellant was charged in case no. CR-2015-103 with two counts of aggravated

 robbery, possession of a firearm by certain persons, and theft by receiving. In case no., CR-

 2015-108, he was charged with escape and second-degree battery. Negotiations led to a

 plea agreement providing that if appellant entered a plea of guilty to all charges, the State

 would recommend that he be sentenced to twenty years in the ADC on all counts in the

 first case with another six years concurrent on the charge of second-degree battery in the

 second case. These would be served concurrently with the ADC sentence appellant was
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then serving from a prior conviction. In addition, appellant would be required to testify

truthfully against codefendant Corderro Foster at Foster’s jury trial that was scheduled to

take place by February 10, 2016.

       On February 5, 2016, appellant entered guilty pleas in the above-described cases, and

in open court with counsel present and participating, appellant provided a factual basis for

the charges and admitted guilt to the trial court. The trial court found the plea to be knowing

and voluntary and also found a factual basis for the plea. The trial court acknowledged

appellant’s counsel’s explanation that appellant was required to testify truthfully against

Foster as part of the plea agreement and asked appellant if he was aware of his obligations in

order to get his “guaranteed sentence.” Appellant responded in the affirmative. The trial

court then accepted appellant’s guilty plea but deferred sentencing until “at least February

10th,” presumably subsequent to the conclusion of Foster’s jury trial.

       On March 4, 2016, at the deferred sentencing proceeding, the State explained to the

trial court that appellant’s testimony at Foster’s trial was the complete opposite of what his

counsel had previously led the State to expect. Appellant testified that another individual on

the evidence videos had assisted him in the robberies rather than Foster. As a result, the

State moved to withdraw its plea offer. Although defense counsel argued that appellant

testified truthfully, the trial court allowed the State to withdraw its sentencing

recommendation, stating,

              I did not accept any type of recommendation from the State. All I accepted
       was the guilty plea from [appellant] based on what [appellant] did during the
       aggravated robbery and during the escape. So, [appellant] has been found guilty by
       the Court. And now the State is withdrawing their recommendation. So, [appellant]
       will be sentenced by the Court without a recommendation from the State. Do you
       have anything you want me to consider before I pronounce sentence?

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       Appellant’s attorney responded that appellant admitted his involvement and

requested that appellant receive the same sentence that Foster received at trial. Appellant

made no attempt to withdraw his guilty plea.

       The trial court sentenced appellant to 600 months in the ADC on each count of

aggravated robbery, 180 months for possession of a firearm, and 96 months for theft by

receiving, all set to run concurrently, in case no. CR 2015-103. In case no. CR 2015-108,

the trial court sentenced appellant to 300 months for escape and 96 months for second-

degree battery, running concurrent to each other but consecutive to case no. CR 2015-

103. All sentences would be consecutive to the sentence that appellant was already serving

in the ADC.

       A decision to allow alternative sentencing is reviewed for an abuse of discretion.

Steele v. State, 2014 Ark. App. 257, 434 S.W.3d 424. This standard is a high threshold and

requires that a trial court act improvidently, thoughtlessly, or without due consideration. Id.

       Appellant argues that the trial court abused its discretion in failing to follow the

sentencing mandates of Arkansas Rule of Criminal Procedure 25. Specifically, appellant

argues that the sentencing orders should be reversed and remanded for resentencing or

dismissed because the trial court was in violation of Arkansas Rule of Criminal Procedure

25.3(c), which sets forth the responsibilities of the trial judge concerning plea agreements:

       If the parties have not sought the concurrence of the trial judge in a plea agreement
       or if the judge has declined to indicate whether he will concur in the agreement, he
       shall advise the defendant in open court at the time the agreement is stated that:

           (i)     the agreement is not binding on the court; and




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           (ii)   if the defendant pleads guilty or nolo contendere the disposition may be
                  different from that contemplated by the agreement.

       The trial court specifically stated that “it did not accept any type of recommendation

from the State.” Because the trial court declined to indicate that it concurred in the

agreement, appellant maintains that it had a duty and a responsibility under Rule 25 to

inform him that the agreement was not binding on the trial court and that the disposition

might be different from that contemplated by the agreement. Appellant urges that the trial

court violated the mandatory language in Rule 25 because he was unaware of the potential

outcomes of his agreement. See Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003).

       In addition, appellant argues that there was insufficient evidence presented to the trial

court that he had violated the terms of his agreement with the State. Appellant asserted that

he had testified truthfully at trial, and the State presented no contrary evidence to the trial

court. Appellant claims that it was the State that erred by not having him proffer his

testimony prior to its presentation at Foster’s trial. All it had was an alleged assertion by

appellant’s counsel of the expected testimony and nothing provided from appellant himself.

       In Wright v. State, 2016 Ark. 5, our supreme court reiterated that Arkansas Rule of

Appellate Procedure–Criminal 1(a) (2016) provides that there is no direct appeal from a plea

of guilty. An exception is created when a conditional plea of guilty is premised on an appeal

of the denial of a suppression motion pursuant to Arkansas Rule of Criminal Procedure

24.3. See Gooch v. State, 2015 Ark. 227, 463 S.W.3d 296. The court noted the two additional

exceptions to the general rule as set out in Grissom v. State, 2009 Ark. 328 (per curiam), and

Seibs v. State, 357 Ark. 331, 166 S.W.3d 16 (2004): (1) when there is a challenge to

testimony or evidence presented before a jury in a sentencing hearing separate from the plea

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itself and (2) when the appeal is from a posttrial motion challenging the validity and legality

of the sentence itself. Wright, supra; see also Bradford, supra. Absent one of the exceptions, a

defendant waives his right to appeal when he pleads guilty. Wrigh, supra; Nelson v. State,

2012 Ark. 217 (per curiam).

       Because this case does not meet the requirements for any of the exceptions that

would allow for an appeal from the judgment, we dismiss.

       Dismissed.

       GLOVER, VAUGHT, and BROWN, JJ., agree.

       WHITEAKER, J., concurs.

       HARRISON, J., dissents.

       PHILLIP T. WHITEAKER, Judge, concurring. I agree with the facts as set forth

in the majority opinion. I further agree with the majority’s conclusion that under the

current status of the law, Cartwright is precluded from challenging his guilty plea on appeal.

As a general rule, a defendant has no right to appeal from a plea of guilty. Matthews v. State,

2017 Ark. App. 25; Wooley v. State, 2016 Ark. App. 343, at 1 (citing Ark. R. App. P.–Crim.

1(a) (2015)). A defendant may appeal from a guilty plea under three limited exceptions: (1)

a conditional guilty plea under certain specified circumstances pursuant to Arkansas Rule of

Criminal Procedure 24.3(b); (2) where the assignment of error is from a sentence or

sentencing procedure that was not an integral part of the acceptance of the plea; and (3) an

appeal from a guilty plea when the issue on appeal is one of evidentiary errors that arose

after the plea but during the sentencing phase of the trial, regardless of whether a jury was

impaneled or the trial judge sat as the trier of fact during that phase. Matthews, supra (citing


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Wooley v. State, supra; Burgess v. State, 2016 Ark. 175, 490 S.W.3d 645; Johnson v. State, 2010

Ark. 63; King v. State, 2013 Ark. App. 342). Cartwright’s appeal does not fit any exception.

Therefore, I must concur in the outcome as outlined above. I write separately, however,

to note an apparent gap in our rules.

The dissent relies on our supreme court’s decision in Bradford v. State, 351 Ark. 394, 94

S.W.3d 904 (2003) and Rule 25.3 of the Arkansas Rules of Criminal Procedure in an

attempt to salvage Cartwright’s ability to appeal. I do not find either of these to be apposite.

Rule 25.3, by its very language, contemplates the trial court’s decision to vary from the

sentencing recommendations or concessions of the plea agreement. When a trial court

decides to vary from the sentencing recommendations or concessions of the plea agreement,

the trial court is then required to inform the defendant of his right to withdraw the plea or

to advise the defendant that the agreement is not binding on the court. Our supreme court

in Bradford allowed an appeal from a guilty plea when the trial court ordered Bradford to be

resentenced after it had accepted a guilty plea and the negotiated sentencing

recommendations. The supreme court held that the trial court failed to comply with the

mandatory requirements of Rule 25.3 by advising Bradford of his right to either affirm or

withdraw his plea.

That is not what occurred here. Here, the court did not decide to vary from the terms of

the agreement; the State withdrew its recommendation. Rule 25.3 does not address the

situation in which the State withdraws its sentencing recommendations or concessions after

the plea but prior to sentencing. While Rule 26.1 contemplates a defendant’s ability to

withdraw a plea under these circumstances, nothing in our rules requires the court to advise


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the defendant that he has either the ability or the opportunity to do so. Thus, it is my

opinion that under the current state of the law, we are required to dismiss Cartwright’s

appeal. Any change in the law to address this gap must come through either a decision of

our supreme court or through an amendment to our rules.

       BRANDON J. HARRISON, Judge, dissenting. This case asks whether the circuit court

should have told Justin Cartwright, pursuant to Rule 25.3 of the Arkansas Rules of Criminal

Procedure, that he had a right to affirm or withdraw his guilty plea before the court deviated

upward from the negotiated, written plea agreement’s bargained-for sentence concession. The

majority has taken a position that not even the State has pressed: Cartwright cannot appeal. I

respectfully disagree. Cartwright should be allowed to appeal to this court given the particular

issue in play and a supreme court case on point.

       Cartwright challenges the sentencing orders the court entered after it had accepted his

plea of guilty in February 2016 and sentenced him during the March 2016 hearing. During the

second hearing the court rejected the plea agreement’s sentence concession after it had accepted

the State’s argument, through its lawyer, that Cartwright breached the terms. Cartwright’s

lawyer countered that he had not breached the agreement. (No actual evidence of a breach was

ever presented.) Having accepted the State’s argument, the circuit court kept intact Cartwright’s

prior plea of guilty to numerous charges but did not sentence him pursuant to the negotiated,

written plea agreement. Cartwright argues here that Bradford v. State, 351 Ark. 394, 94 S.W.3d

904 (2003) requires that we reverse the sentencing orders and dismiss the charges because the

circuit court did not comply with Arkansas Rule of Criminal Procedure 25.3’s notice provisions.

       Here is all of Rule 25.3:


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               (a) The judge shall not participate in plea discussions.

               (b) If a plea agreement has been reached which contemplates entry of a
       plea of guilty or nolo contendere in the expectation that the charge or charges
       will be reduced, that other charges will be dismissed, or that sentence concessions
       will be granted, upon request of the parties the trial judge may permit the
       disclosure to him of the agreement and the reasons therefor in advance of the time
       for tender of the plea. He may then indicate whether he will concur in the
       proposed disposition. If, after the judge has indicated his concurrence with a plea
       agreement and the defendant has entered a plea of guilty or nolo contendere, but
       before sentencing, the judge decides that the disposition should not include the
       charge or sentence concessions contemplated by the agreement, he shall so advise
       the parties and then in open court call upon the defendant to either affirm or
       withdraw his plea.

               (c) If the parties have not sought the concurrence of the trial judge in a
       plea agreement or if the judge has declined to indicate whether he will concur in
       the agreement, he shall advise the defendant in open court at the time the
       agreement is stated that:

               (i) the agreement is not binding on the court; and

               (ii) if the defendant pleads guilty or nolo contendere the disposition may
       be different from that contemplated by the agreement.

              (d) A verbatim record of all proceedings had in open court pursuant to
       subsections (b) and (c) of this rule shall be made and preserved by the court.

       The majority characterized this as a Rule 25.3(c) case, which means it determined that

either (1) the parties did not seek the court’s concurrence in the plea agreement, or (2) the court

“declined to indicate” whether it would “concur in the agreement.” Id.

       This is a Rule 25.3 subsection (b), not (c), case. Subsection (b) applies because a guilty

plea was negotiated and entered with the expectation that a particular sentence concession would

be granted. The “guaranteed sentence,” to use the circuit court’s exact phrase spoken during

the February plea hearing, was the 20-year sentence the parties had negotiated and disclosed to

the court. In my view the parties sought the court’s concession, and the court concurred with


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the agreement within the meaning of Rule 25.3(b) during the February hearing. It was then up

to Cartwright to perform. The court stated during the subsequent March sentencing hearing

that it had not “accepted” the sentence concession during the February hearing. I take that

comment to mean the court was making clear that it had not actually imposed a sentence during

the February plea hearing. The court did, however, express a rather clear indication that it

would concur with the written plea agreement if Cartwright performed as expected.

       Whether subsection (b) or (c) applies here, and what the legal consequence of one choice

over the other may be, are not issues decided today because the majority has held that Cartwright

may not even be heard to complain.

       The crucial takeaway should be that Cartwright is being denied what our supreme court

provided in Bradford: a direct appeal and merit opinion in the guilty-plea context, when the

defendant challenged whether a circuit court had given the required Rule 25.3 notice before

sentencing. And the majority of justices did so over a dissent that essentially (and unsuccessfully)

argued the position that the majority in this case has taken.

       The majority opinion little notes Bradford and does not try to distinguish it from this case.

But we should do what the Arkansas Supreme Court did in a similar circumstance and open the

Justice Building’s doors to Cartwright’s appeal. I express no opinion, however, on the merit of

his argument.

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

       Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.




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