Lead Opinion
The appellant, John Michael Caldwell, was convicted of second degree battery for shooting James Roberts. He contends he was entitled to thе benefit of a plea bargain from which the state withdrew before trial. He argues he was constitutionally entitled to be indicted rather than proceеded against by information and that the information was invalid because it did not contain the words, “against the peace and dignity of the State of Arkansas” in the right place. He also contends the court erred in not requiring the state to furnish him a transcription of a statement he gave before trial. We hold that, beсause Caldwell has not demonstrated that he relied on the plea bargain in any way, it was not error to permit the state to withdraw from it. We hold that the constitution is not violated by the information procedure, and that no error occurred with respect to the arrangement of the words of the information. Wе also hold no prejudice resulted from the failure to furnish the transcription. The conviction is affirmed.
1. Withdrawal from plea bargain
Toward the end of his term of office, the prosecutor offered to recommend a sentence to five years probation in exchange for Caldwell’s plea of guilty to first degree battery and aggravated assault. Caldwell signed the agreement. A new prosecutor took office before Caldwell entered a plea, and the new prosecutor refused to honor the agreement. Caldwell moved to require that the agreement be enforced. The motion was denied. The aggravated assаult charge was dismissed, and, upon a plea of not guilty, Caldwell was convicted of second degree battery, a lesser offense included in first degree bаttery.
As authority for his contention that he was entitled to specific performance of the agreement, Caldwell cites our opinion in Hally v. State,
We have no case squarely in point. The cases from other jurisdictions аre discussed in Annot., Right of Prosecutor to Withdraw from Plea Bargain Prior to Entry of Plea,
Caldwell argues that he relied to his detriment on the agreement, but the closest he comes to saying he was prejudiced is the general statement that upon entry of the agreement he stopped preparing his defense. He makes no specific statement that any preparаtions were foregone or how his defense may have suffered. We find no facts showing detrimental reliance.
Caldwell also argues that it is fundamentally unfair to аllow the state to renege, whether or not he has relied. Some courts might agree. See Cooper v. United States,
We do not mean to suggest by this discussion that if an accused has detrimentally relied to any degree or in any manner upon a plea bargain he may hаve specific performance of it prior to entering a plea based upon it. We will cross that bridge when we come to it. Withdrawal under those circumstances may affect only the evidence available to the prosecution. Here we hold only that absent a showing of acceptаnce of a plea of guilty based upon agreement and absent a showing of other detrimental reliance upon the agreement, Caldwell was not entitled to enforcement of it.
2. The information
In many cases, including Davis v. State,
Arkansas Const., art. 7, § 49, provides, in part, “Indictments shall conclude: ‘Against the peace and dignity of the State of Arkansas.’ ” This is known as the contra pacem clause. In Williams v. State,
Count I of the information against Caldwell stated the battery offense and did not contain the clause. It was, however, contained in the information after the aggravated assault count, which was count II. The clause was not included in the body of either count but was at the conclusion of the printed information form upon which the two counts had been typed. It is apparent to anyone reading the information
When Caldwell’s counsel brought this matter to the attention of the court and the prosecutor, the prоsecutor, for reasons we do not know, refused to amend the information to include the required words in count I. The judge remarked that with the dismissal of count II, the сlause came at the conclusion of count I. While it would have been easier to decide had the remaining count in the information been expressly amended to include the clause, we agree with the trial court’s conclusion that the dismissal of count II effectively amended the indictment so that count I concluded with the required clause.
3. The statement
Caldwell gave an exculpatory statement to a deputy sheriff shortly after the shooting occurred describing it as accidental. His counsel made a pre-trial motion to require production of any such statement made by Caldwell. There is no doubt that Caldwell was entitlеd to the statement. Ark. R. Crim. P. 17.1(a)(ii); Williamsons v. State,
Caldwell made a pre-trial motion to suppress the statement and was told by the court that the state could use the statement to imрeach him if he took the stand. Caldwell’s counsel agreed with the court’s observation, and no objection was raised at that point with respect to failure of the prosecution to produce the statement.
During the trial the state neither introduced the statement nor mentioned it. It was referred to only whеn Caldwell’s counsel asked the deputy sheriff who had taken the statement about it. Caldwell has not argued that the failure of the state to produce the statement was in any way prejudicial to him, and absent a showing of prejudice we will not reverse. Dunlap v. State,
Affirmed.
Dissenting Opinion
dissenting. I dissent from that portion of the opinion whiсh holds that criminal charges may be filed by information. I believe Amendment 21 to the Constitution of Arkansas is in direct violation of the Fourth and Fifth Amendments to the Constitution of the United States.