Omar H. Ali v. State of Arkansas

Cite as 2020 Ark. App. 429
Reason: I attest to the accuracy
and integrity of this document
Date: 2021-07-12 11:00:36
ARKANSAS COURT OF APPEALS
Foxit PhantomPDF Version: DIVISION III
9.7.5 No. CR-19-829

OMAR H. ALI Opinion Delivered: September 23,
2020
APPELLANT
APPEAL FROM THE HOT SPRING
V. COUNTY CIRCUIT COURT
[NO. 30CR-18-153]

STATE OF ARKANSAS HONORABLE CHRIS E WILLIAMS,
JUDGE
APPELLEE
AFFIRMED

MEREDITH B. SWITZER, Judge

Appellant Omar Ali appeals his conviction of one count of possession of five grams

of methamphetamine in the Hot Spring County Circuit Court on the basis that the court

erred in allowing the State to withdraw an agreement not to prosecute after he accepted it

and had performed the conditions of the agreement. We affirm.

Ali was arrested on June 17, 2018, by a Malvern police officer on a probable-cause

warrant during a traffic stop. A search incident to Ali’s arrest revealed a baggie removed

from his person containing several suspected controlled substances. Ali was subsequently

charged with possession of seven grams of methamphetamine, possession of drug

paraphernalia, and possession of cocaine as well as a habitual-offender enhancement for

being a felon convicted of four or more felonies.

Ali entered a plea of not guilty to the charges on July 24. At the pretrial hearing on

August 14, the following colloquy ensued:
PROSECUTOR: Judge, since our last court appearance [defense counsel]
has sent someone to -- and I’m not sure if this person
actually came to the police office and then to our office.
But, regardless, we’ve received a letter from a female
taking credit for possession of these drugs. I intend to ask
the police department to investigate that. I don’t know
how the Court wants to handle it. She’s claimed
responsibility for that. I intend to ask the P.D. to see if
they can investigate and see if that’s enough to charge
her. Mr. Ali’s charges are possession -- drugs were
alleged to have been in the vehicle. She’s taking credit
for having left them in the vehicle earlier is the gist of it.
At this point I don’t know if you’d like to give us
another call back or if you would like to set this for trial.
But I don’t think Mr. Ali, until we investigate that,
intends to plead guilty on this. We have made an offer.

CIRCUIT COURT: So, she’s going to take a hit on a Class C felony for Mr.
Ali.

PROSECUTOR: That is what it appears, Your Honor. I have a piece of
paper. I have not talked to a live person. I believe it’s
been notarized, and she may have talked to [defense
counsel].

DEFENSE COUNSEL: Yes, sir. She’s been in my office and gave me a written-
out statement, which I furnished to -- told her she
needed to carry it to the prosecution. But she is adamant
-- I have her name, address, and phone number -- that
these were not his. They were hers. And I informed, told
her, you understand you could or may be charged
yourself for this.

CIRCUIT COURT: Yes, she could.

DEFENSE COUNSEL: And she said yes, she understood. That he was innocent
of this.

CIRCUIT COURT: All right.

PROSECUTOR: Your Honor, Mr. Ali, I think has another case that I
believe we’ve already set for trial. I don’t know if you’d
like to set this one the same day and let us see if we can’t

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work this out between now and then. We’d have a date
back certain.

CIRCUIT COURT: Well, all I ask is that if you take a plea that you at least
get a conditional plea on this one to wipe it out. And
that conditional plea is that he’ll testify truthfully –

PROSECUTOR: Yes.

CIRCUIT COURT: – based on whatever the facts are in the case so that the
co-defendant will get convicted.

PROSECUTOR: And at this point –

CIRCUIT COURT: If they’re actually the ones that had all the dope.

PROSECUTOR: Yes, sir. And that needs some further investigation.

CIRCUIT COURT: So, [defense counsel], is your client going to be willing
to make a conditional plea offer for a dismissal?

DEFENSE COUNSEL: Yeah.

DEFENDANT: Yes.

CIRCUIT COURT: And that he’ll testify truthfully, and he’ll fill out a
statement of what he will testify to.

DEFENDANT: Absolutely.

CIRCUIT COURT: All right, there you go. There you go. I’m –

PROSECUTOR: I’ll get with C.I.D. at the police department, Your
Honor.

CIRCUIT COURT: All right. You get them set up and meet with C.I.D.
and let C.I.D. go over it and take a sworn statement from
Mr. Ali. And you’ll dismiss the charges. That’s my
understanding?

PROSECUTOR: If it –

CIRCUIT COURT: All right. I’ll set it back. You get that done by August
the 28th?
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PROSECUTOR: I will certainly do my best.

CIRCUIT COURT: I’ll see all of you back here at one o’clock p.m. with a
statement from law enforcement and an order for
dismissal on Mr. Ali.

Ali gave a written statement to the Hot Spring County Sheriff’s Office on August

26, 2018. His statement provided that on June 17, 2018, Mary Katherine Davis returned a

vehicle she had borrowed from him; soon after, she had called and told him she had left “a

few baggies of cocaine, methamphetamines, white pills and marijuana in the center console”

of the vehicle; she had asked Ali to meet her; and he was pulled over on his way to meet

her.

The parties were back in court on August 28. While discussing Ali’s case, the

following discussion occurred:

CIRCUIT COURT: What’s the status of Mr. Ali’s case at this point in time?

PROSECUTOR: Your Honor, we have an offer outstanding. I suspect Mr.
Ali will probably reject that, but I don’t know that for a
fact. We had set this back so we could do some
additional investigation. I spoke with Chief Deputy
Shirron yesterday. He said at this point we will leave the
charges as they are. So that will probably be news to Mr.
Ali. I have not discussed that with [defense counsel], so
...

CIRCUIT COURT: Does he accept or reject the offer?

DEFENSE COUNSEL: I don’t have an offer. I don’t have one.

PROSECUTOR: The offer I’m showing, Your Honor, was a pen time
offer on -- is it ten years? - on possession of meth, and
six years concurrent on the possession of paraphernalia.

CIRCUIT COURT: For a total of ten years?

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PROSECUTOR: Yes, sir, concurrent. Yes, sir.

DEFENSE COUNSEL: Is that on the other case too?

PROSECUTOR: No, just this one.

A jury trial was set for March 15, 2019. Approximately thirty minutes prior to trial,

the State nolle prossed the possession of cocaine and drug paraphernalia counts and, in an

in-chambers meeting, amended the allegation of possession of seven grams of

methamphetamine to possession of five grams. The circuit court also addressed Ali’s

contention that the State had agreed to dismiss his case if he gave a statement and agreed to

testify that the drugs found in his possession in fact belonged to Davis, which he had done.

In making this argument, Ali’s counsel stated, “Now, it was not absolute on the record that

that would happen. It was just that if upon further investigation by the Prosecution and by

the police department that if the circumstances were as such then they could be dismissed.

But there was no actual agreement.” (Emphasis added.) The circuit court then asked if defense

counsel found the circuit court had referred to the agreement as a “conditional plea offer”;

defense counsel agreed that was correct; and the circuit court stated it does not direct “the

Prosecution of the State of Arkansas to do anything.” The circuit court denied Ali’s request

to dismiss the case on the basis that the State had reviewed his statement and did not accept

it as true.1 Ali proceeded to trial on the single count of possession of five grams of

1
The State agreed not to use Ali’s statement against him at trial.

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methamphetamine, was found guilty, and was sentenced to twenty-seven years in prison as

a habitual offender.2

An agreement not to prosecute must be enforced if the appellant shows that the

agreement existed and that he or she relied on the agreement to the appellant’s detriment.

Savage v. State, 2019 Ark. App. 532, at 10, 590 S.W.3d 164, 170. Two legal principles

inform whether a valid agreement existed: (1) a court cannot make a contract for the parties

but can only construe and enforce the contract the parties have made, and if there is no

meeting of the minds, there is no contract; and (2) in order to make a contract, there must

be a meeting of the minds as to all terms, using objective indicators. Id. Both parties are

required to manifest assent to the specific terms of the contract. Id. Specific performance

of an agreement not to prosecute is not appropriate if the government made no firm promise

of immunity. United States v. Johnson, 861 F.2d 510 (1988). We review the circuit court’s

findings of fact for clear error, giving due weight to inferences drawn by the circuit court,

and reverse only if the ruling is clearly erroneous or against the preponderance of the

evidence. State v. Johnson, 2010 Ark. 77, 360 S.W.3d 104. Questions of law, however, are

reviewed de novo. Id.

In the present case, Ali’s counsel acknowledged prior to trial that there was no actual

agreement that the State would dismiss the charges against Ali if he gave a written statement;

the State clearly posited that additional investigation of the statement was needed. The State

made no firm promise of immunity; in fact, it made no promise of immunity at all but rather

2
Ali filed a motion for reconsideration of the State’s refusal to dismiss the charges
after he was convicted by a jury. The circuit court determined the motion was untimely,
and Ali makes no argument on appeal regarding this ruling.
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committed only to investigating the statements. It cannot be said there was a meeting of

the minds on dismissing the charges against Ali. Absent a meeting of the minds, there was

no agreement for the court to enforce. The circuit court did not clearly err in denying Ali’s

request to require the State to dismiss the charges against him.

Affirmed.

ABRAMSON and BROWN, JJ., agree.

Gregory Crain, for appellant.

Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.

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