The opinion
Wendell L. Griffen, Judge, concurring. I concur in the outcome of this case because existing case law appears to leave us no room to decide otherwise. However, I write separately to express my concern that Ark. R. Crim. P. 24.3(b) (2002) requires either a clarifying rule revision or else clear, elucidating guidance from our supreme court. Upon my review of applicable Arkansas law, it appears that litigants and our courts are struggling to understand what constitutes strict compliance with Rule 24.3(b). Thus, despite what trial counsel and the trial court in this case might have intended, we must dismiss the present appeal where (1) appellant claimed that law enforcement officers violated his Fourth Amendment rights; (2) appellant properly reserved his arguments for appeal, were it not for the jurisdictional question involving his proper strict compliance with Rule 24.3(b); (3) appellant and the State appear to have attempted to enter into a valid conditional plea agreement, and where (4) the document purporting to demonstrate the existence of a conditional plea was part of the circuit-court-certified trial record, despite lacking the trial court’s signature or other indices of its approval.
Existing law applicable to Arkansas conditional pleas is quickly summarized. See, e.g., David J. Sachar, Overview of Ark. Warrantless Search and Seizure Law, 23 U. Ark. Little Rock L. Rev. 423 (2001) (discussing Rule 24.3(b) generally, but not detailing what strict compliance entails specifically). Specifically, Ark. R. Crim. P. 24.3(b) states:
With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.
Our supreme court requires strict compliance with the Rule’s requirement that the right to appeal be reserved in writing. Barnett v. State, 336 Ark. 165 , 984 S.W.2d 444 (1999). This requirement applies even when there has been an attempt to enter a conditional plea below. Ray v. State, 328 Ark. 176 , 941 S.W.2d 427 (1997). The writing must be contemporaneous. Tabor v. State, 326 Ark. 51 , 930 S.W.2d 319 (1996) (finding that a subsequent order by the trial court with an attached signed plea statement, following a remand from the court of appeals, was insufficient to “breathe life into a moribund appeal where no jurisdiction originally vested” because appellant failed to make his conditional plea contemporaneously). There must be an indication that the conditional plea was entered with the approval of the trial court and consent of the prosecuting attorney. Noble v. State, 314 Ark. 240 , 862 S.W.2d 234 (1993). Furthermore, the supreme court emphasized that conditional guilty pleas only preserve arguments for appeal stemming from hearings upon motions to suppress evidence. Payne v. State, 327 Ark. 25 , 937 S.W.2d 160 (1997). Under Arkansas law, a conditional plea of guilty becomes final when the appellant does not prevail on appeal. Scalco v. City of Russellville, 318 Ark. 65 , 883 S.W.2d 813 (1994) (finding that there was a proper conditional plea of guilty, but that appellant had failed on appeal, and that therefore the trial court had no jurisdiction to rule on appellant’s motion to withdraw his guilty plea following his failure on appeal).
Of all our cases generally citing or addressing Rule 24.3(b) and its requirements, few detail what constitutes strict compliance with the Rule. At this point it may be worth noting that Arkansas appears to be in a somewhat distinct group of states in which compliance with various, differing conditional-plea requirements is strictly enforced — i.e., as opposed to states using a “substance-over-form” approach. See State of Hawai’i v. Lei, 95 Haw. 278 , 21 P.3d 880 (2001) (providing a very useful overview of both federal and state cases analyzing conditional-plea rules substantially similar to Arkansas’s Rule 24.3(b)). A number of Arkansas cases summarily refer to facts indicating that the appellant failed to perfect a conditional guilty plea, but do so in a manner suggesting that there was no document that even remotely falls under the scope of Rule 24.3(b). See, e.g., Noble v. State, supra (finding nothing to show that appellant conditioned his guilty plea by reserving, in writing, his right to appeal); Ray v. State, supra (finding nothing in the record to support appellant’s claim that a conditional plea existed where the plea in the record simply states that appellant pleads guilty, acknowledges his rights he is waiving, the offenses to which he pleads guilty, and the agreed recommendation of punishment). In one such case, Burress v. State, 321 Ark. 329, 330 , 902 S.W.2d 225, 226 (1995), the supreme court stated that the record reveals a reference by the trial court to a “document entitled Guilty Plea Statement,” but neither the abstract nor the trial record contained any reference to a writing reserving the right to review. In yet another case, our supreme court stated that the requirement of “reserving in writing” the right of review was not met, explaining the relevant law surrounding Rule 24.3(b), but without going into factual detail. Bilderback v. State, 319 Ark. 643, 646-47 , 893 S.W.2d 780, 782 (1995).
In Barnett v. State, supra, the supreme court held that the appellant’s purported conditional plea of guilty was not in strict compliance with Rule 24.3(b). In that case, the plea statement in question contained language that the appellant “understood that if he pleaded guilty, he would give up various legal rights, including his ‘right to appeal a verdict against [him].’” Id. at 169, 984 S.W.2d at 446 . Furthermore, the court in Barnett stated that the plea agreement failed to demonstrate that the trial court approved a conditional plea, or that the prosecutor consented to a conditional plea — without explaining how such demonstration ought to appear. Id. at 170 , 984 S.W.2d at 447 .
The Barnett court distinguished that case from the earlier opinion in Green v. State, 334 Ark. 484 , 978 S.W.2d 300 (1998). In Green, the supreme court held that Rule 24.3(b) was satisfied where the handwritten word “conditional” appeared above the typed heading “PLEA STATEMENT,” signed by the defendant, and where that portion of the plea statement acknowledging waiver of the right to appeal was crossed out and initialed by the defendant. Notably, Green did not address what constitutes a contemporaneous writing for purposes of Rule 24.3(b), or whether the writing sufficiently documented consent of the prosecutor, or approval of the court.
The Arkansas Court of Appeals addressed the issue of strict compliance in more detail in Simmons v. State, 72 Ark. App. 238 , 34 S.W.3d 768 (2000). In that case, we found that the appellant failed to perfect his conditional guilty plea. The case involved a “guilty plea statement,” signed by the appellant and his attorney. The statement set forth various rights that are waived upon the entry of a guilty plea, “including a waiver of the ‘right to appeal from the verdict and judgment, challenging all issues of fact and law.’” Id. at 241 , 34 S.W.3d at 770 . The two-page guilty-plea statement was attached to what was labeled as page 3 and entitled as “sentence recommendation,” dated earlier than the guilty-plea statement, and signed by the prosecuting attorney. Page 3 contained a handwritten statement of unknown origin, stating: “Conditional plea — re suppression — No objection to boot camp. No further charges to be filed. May appeal suppression pursuant to Rule 28 [sir] of Arkansas Rules of Criminal Procedure.” Id. In a footnote, this court remarked that the handwritten statement appeared in two different handwritings, both of which were different from the handwriting of the person who filled in the handwritten portions of the sentence recommendation. Id. On appeal, we found no indication that the prosecutor consented to the conditional plea and that he clearly had not been present during the sentencing hearing. Id. at 243 , 34 S.W.3d at 771 . Furthermore, the guilty-plea statement contained express language to the effect that the appellant waived his right to appeal by making his plea.
In yet another opinion by our court, we pointedly stated that Rule 24.3(b) does not specify how courts and prosecutors are to convey approval and consent in order to manifest strict compliance with the rule. McCormick v. State, 74 Ark. App. 349 , 48 S.W.3d 549 (2001). There, we held that where the prosecutor was present when a defendant entered a conditional plea of guilty, contested any objectionable aspects of the disposition of the case, and allowed the plea to be entered as a “negotiated plea of guilty,” the requirement of subsection (b) of Rule 24.3 was satisfied. Id. Specifically, we held that “negotiated” implies consent by the prosecutor, because such a negotiation could only take place between the defendant and the State. Id.
Finally, in McMullen v. State, 79 Ark. App. 15 , 82 S.W.3d 827 (2002), we held that a plea questionnaire and written judgment and commitment order did not satisfy the writing requirement for a conditional plea of guilty. Specifically, the questionnaire did not reflect that the guilty plea was conditional and instead contained the question: “Do you understand the effect of a plea of guilty to the charges against you, in that there is no appeal and you can’t withdraw your plea later on?” Defendant answered this question with “yes.” The judgment and commitment order contained the handwritten notation “Conditional Plea,” but was not signed by the defendant and gave no indication as to who wrote it or when it was written. Id.
Thus, we are faced with a procedural rule that apparently creates confusion for Arkansas litigants and courts, even though it obviously would be of crucial importance to defendants to know precisely how to perfect their conditional pleas of guilty. As previously stated, the law is anything but clear on what exactly constitutes strict compliance. Whereas some cases specifically mention lack of proof that the prosecutor and trial court consented and approved the conditionality of the guilty plea, others merely focus on one or two elements of the strict-compliance rule — without making any findings that the remaining elements were sufficiently met. See, e.g., Green v. State, supra (finding a handwritten “conditional” above the typed words “plea statement” sufficient, where waiver of appeal was crossed out, and defendant had signed; but not finding that either the court or prosecutor approved and consented).
In the present case, for instance, the document entitled “guilty plea agreement” does not contain an express waiver of appeal. Instead, it contains statements such as the right to question facts, to confront factual and legal issues, the right to a trial, and a statement to the effect of giving up and waiving “all [his] rights.” These statements appear to refer to a defendant’s rights regarding trial — all of which he waives upon pleading guilty — and not his rights regarding appeal. Furthermore, the signatures of the defendant, his attorney, and the prosecutor appear on one page. The page is dated March 20, 2002, next to the defendant’s signature. The document does not provide for any further dating next to any of the other signature lines. The document carries a file-stamp by the circuit court, dated the same day. Both the handwritten word “Conditional” and the signature of the prosecutor could very well stem from the same hand — and lest there be doubt, we did consider handwriting at least implicitly in Simmons v. State, supra. And finally, the document in question is part of the certified trial record. It is difficult to imagine how the “conditional” plea of guilty made its way into the trial record without the trial court’s approval. Even so, the document does not contain the trial court’s signature, let alone evidence that the signature connoted trial court approval of an explicit agreement by the defendant, his counsel, and the prosecutor that the right to appeal the denial of the suppression motion was reserved.
After a thorough review of the applicable case law, one is left with the impression that, to be effective, a conditional guilty plea agreement must be evidenced by a contemporaneous writing which unequivocally declares that the defendant pleads guilty, but expressly reserves the right to appeal the trial court’s decision to deny a suppression motion as permitted by Rule 24.3(b). Furthermore, such conditional guilty-plea agreements should bear the signature of the defendant and defense counsel, and demonstrate the prosecutor’s consent and the court’s approval as proven by their signatures and appropriate text in the document. Until our supreme court declares that this is what must be done to constitute strict compliance with Rule 24.3(b), perhaps supplemented by a model form that trial courts, prosecutors, and defense counsel can use when defendants indicate that they want to enter conditional guilty pleas, trial courts, prosecutors, defense counsel, defendants, and appellate judges will continue to trip and stumble.