Does an Arkansas prosecutor have to be physically present every time a court accepts a guilty plea?

Plain-English summary

Ian W. Vickery, the prosecuting attorney for the Thirteenth Judicial District, asked whether Arkansas Rule of Criminal Procedure 24.3(d) means a prosecutor must be present every single time a court accepts a guilty plea, even on a district court's busy "plea and arraignment days" for misdemeanors. Attorney General Dustin McDaniel said no.

The rule states that "no plea of guilty or nolo contendere shall be accepted by any court unless the prosecuting attorney . . . is given opportunity to be heard at the time the plea is tendered." Reading the words as they are written, the AG concluded the rule requires only that the prosecutor be given a chance to be heard, not that the prosecutor actually attend or speak. He also read the phrase "at the time the plea is tendered" as fixing when the prosecutor may be heard, not how or when the opportunity has to be offered, so a prosecutor could be given, and could decline, that opportunity in advance. Crucially, the AG stressed that the rule binds trial courts, not prosecutors: it tells judges not to accept a plea without giving the opportunity and leaves it to the judge to decide, case by case, whether the opportunity was given. So a prosecutor who wants to skip appearing should work that out with the presiding judge rather than assume a blanket stipulation will satisfy every court.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Does Rule 24.3(d) require the prosecutor to be in the courtroom for every guilty plea?
A: Not in the AG's view. He read the rule to require only that the prosecutor be given an "opportunity to be heard," and concluded the rule "does not require the prosecutor to speak" and does not, by its terms, require the prosecutor to be present.

Q: Can a prosecutor waive the chance to be heard ahead of time?
A: The AG thought so. He read "at the time the plea is tendered" as describing when a prosecutor may be heard, not how or when the opportunity must be given, and concluded "the opportunity may be given and declined in advance."

Q: Doesn't an Arkansas Supreme Court case say a plea taken without the prosecutor is invalid?
A: The AG addressed Strahan v. State, 350 Ark. 215, 85 S.W.3d 891 (2002), where the court invalidated a plea taken in the prosecutor's absence. He read that case as turning on the prosecutor's lack of knowledge of the plea, not on mere physical absence, and believed a court would uphold a plea taken without the prosecutor present if there was adequate evidence the prosecutor had been given and had declined the opportunity to be heard.

Q: So how should a prosecutor handle this in practice?
A: The AG noted the rule "constrains judges, not prosecutors," and gives judges authority to decide whether its requirement has been met. He advised that a prosecutor wishing to decline in advance the opportunity to be heard should consult the presiding judge about how that judge applies the rule.

Background and statutory framework

Rule 24.3(d) is part of the Arkansas Rules of Criminal Procedure governing how trial courts take guilty and no-contest pleas. The AG applied the settled principle that court rules, like statutes, are construed as they read, giving words their ordinary meaning (citing Magness v. State, 2012 Ark. 16, 386 S.W.3d 390, and State v. Joshaway, 2009 Ark. 595).

The question arose against the double-jeopardy backdrop of A.C.A. § 5-1-115(2), which denies a former-prosecution defense where the earlier prosecution was procured by the defendant without the prosecutor's knowledge. In Strahan, the court cited both Rule 24.3(d) and that statute in holding that a municipal-court "conviction" the defendant had engineered without the prosecutor's knowledge could not bar a later prosecution. The AG's reading of Strahan, that knowledge rather than presence was the pivotal fact, is what let him conclude physical presence is not always required.

Citations and references

Rules and statutes:

• Ark. R. Crim. P. 24.3(d) (opportunity for the prosecutor to be heard before a plea)
• A.C.A. § 5-1-105 (Repl. 2006) (classification of offenses)
• A.C.A. § 5-1-115(2) (Repl. 2006) (former-prosecution affirmative defense)

Cases:

• Strahan v. State, 350 Ark. 215, 85 S.W.3d 891 (2002), plea taken without the prosecutor's knowledge
• Magness v. State, 2012 Ark. 16, 386 S.W.3d 390, plain-meaning construction
• State v. Joshaway, 2009 Ark. 595, construing rules like statutes

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2013-095

October 22, 2013

The Honorable Ian W. Vickery
Prosecuting Attorney
Thirteenth Judicial District
307 American Road, Suite 114
El Dorado, Arkansas 71730

Dear Mr. Vickery:

This is my opinion on your question whether a court rule invariably requires a
prosecutor to be present when a court accepts a guilty plea to any criminal charge,
no matter how serious or minor.

Your question arises in the context of a district court’s “plea and arraignment
days,” on which, you say, misdemeanor’ defendants plead not guilty and receive a
trial date, or plead guilty and are sentenced immediately.

Arkansas Rule of Criminal Procedure 24.3(d) (the “Rule’”’) states in relevant part
that “[n]o plea of guilty or nolo contendere shall be accepted by any court unless
the prosecuting attorney . . . is given opportunity to be heard at the time the plea is
tendered.”

RESPONSE

It bears emphasizing as an initial matter that the rule binds trial courts, not
prosecutors. It prohibits trial courts from accepting pleas unless the required
opportunity is given and implicitly authorizes them to determine when the
required opportunity has or has not been given. Thus, regardless of my opinion or

' Your request refers to misdemeanor charges. I assume violation charges are also heard. See A.C.A. § 5-1-
105 (Repl. 2006).

323 CENTER STREET, SUITE 200 ° LitrLe Rock, ARKANSAS 72201
TELEPHONE (501) 682-2007 * Fax (501) 682-8084
INTERNET WEBSITE ° http://www.ag.state.ar.us/

The Honorable Ian W. Vickery
Prosecuting Attorney

Opinion No. 2013-095

Page 2

a prosecutor’s position, it will always be up to the trial court to determine in the
first instance whether the required opportunity has been given. I will nonetheless
state my opinion on your question and explain my rationale.

Court rules’ — like statutes — are construed just as they read, giving words their
ordinary and usually accepted meanings; legislative intent is gathered from the
plain meaning of the language used.

In my view, the Rule’s plain meaning is that a court cannot accept a guilty plea
unless the prosecutor has been given a chance to be heard during the judicial
proceeding at which the defendant tenders a plea. The Rule does not require the
prosecutor to speak. Nor does the Rule, in my view, limit how or when a
prosecutor may be given — and decline — the chance to be heard.

As a matter of grammar, the phrase “at the time the plea is tendered” modifies the
nearest antecedent, the hearing. So the phrase specifies only when the prosecutor
may be heard. It does not modify the more remote antecedent, the giving of the
opportunity. It thus does not specify how or when the opportunity must be given
or may be declined. I conclude that the opportunity may be given and declined in
advance.

An Arkansas Supreme Court case might be argued to support the opposite
conclusion.’ In it the Court invalidated a plea accepted in the prosecutor’s absence
and without his knowledge. The Court cited both the Rule and a statute that denies
a double-jeopardy defense in some cases where the former prosecution was had
without the prosecutor’s knowledge.* The Court stressed that the prosecutor was
absent but also stated:

• E.g., State v. Joshaway, 2009 Ark. 595, 2009 WL 4405796.

E.g., Magness v. State, 2012 Ark, 16, 3-4, 386 S.W. 3d 390.

4 Strahan y, State, 350 Ark. 215, 85 S.W.3d 891 (2002).

° “A former prosecution is not an affirmative defense [to another criminal charge based on the same
conduct if]... [t]he former prosecution was procured by the defendant without the knowledge of the

appropriate prosecuting official or aggrieved party and with the purpose of avoiding the sentence that might
otherwise be imposed... .” A.C.A. § 5-1-115(2) (Repl. 2006).

The Honorable Ian W. Vickery
Prosecuting Attorney

Opinion No. 2013-095

Page 3

Rule 24.3(d) mandates that the prosecutor be given an “opportunity to be
heard” before any plea of guilty or nolo contendere is tendered to and
accepted by any court. As noted above, this court has interpreted this
requirement strictly. Therefore, Strahan’s “conviction” in municipal court,
procured by Strahan without the knowledge of the prosecutor, cannot
serve as an affirmative defense to a subsequent prosecution for the same
offense.°

The Court’s emphasis on the prosecutor’s absence might be read to imply a
requirement that he invariably be present. But I believe the case turned on the
prosecutor’s lack of knowledge, not on his mere physical absence. I believe the
Court would uphold a lower court’s acceptance of a plea tendered without the
prosecutor’s presence but accompanied by adequate evidence that the prosecutor
had been given and had declined the opportunity to be heard.

You ask whether a prosecutor may “stipulate in advance of a plea that he/she has
been given the opportunity to be heard . . . and thereby avoid the necessity of
being present... .” I have stated my opinion that the Rule does not mean that the
prosecutor must invariably be present. To the extent your question concerns the
nature or magnitude of the evidence by which it must be shown that the prosecutor
has been given the required opportunity; I again note that the Rule constrains
judges, not prosecutors, and implicitly gives judges authority to determine whether
the Rule’s requirement has been met. A prosecutor wishing to decline in advance
the opportunity to be heard at criminal proceedings involving guilty pleas should
consult the presiding judge about that judge’s application of the Rule.

Assistant Attorney General J. M. Barker prepared this opinion, which I approve.

SY OL

JSOSTIN Met ATE
Attorney General

DM:JMB/cyh

° Strahan, supra note 3, at 218 (emphases added, citations omitted)