Judicial Silence Is Not Concurrence in a Plea Agreement: Arkansas Clarifies Plea-Withdrawal Requirements

1. Introduction

In Brock Davis v. State of Arkansas, the Supreme Court of Arkansas addressed whether a defendant could withdraw an accepted guilty plea after the circuit court imposed a sentence substantially greater than the prosecution’s negotiated recommendation. The decision distinguishes three legally separate events: the prosecutor’s agreement to recommend a sentence, the court’s acceptance of a guilty plea, and the court’s concurrence in the negotiated disposition.

The majority held that the circuit court’s silence about the recommended sentence, together with its acceptance of the guilty pleas and dismissal of another charge, did not establish concurrence in the plea agreement. Davis therefore could not obtain withdrawal under Arkansas Rule of Criminal Procedure 26.1(b)(v), which specifically requires indicated judicial concurrence. The court declined to consider his alternative argument concerning inadequate sentencing warnings because it concluded that he had not preserved that theory below.

The opinion is consequently important both for plea practice and appellate procedure. It warns against assuming that a judge has approved a negotiated sentence merely because the plea hearing proceeds, while leaving unresolved the merits of Davis’s separate challenge to the court’s compliance with its warning obligations.

2. Background and Procedural History

The charges and proposed disposition

The State charged Brock Davis with kidnapping, rape, and aggravated assault, alleging habitual-offender status based on more than one but fewer than four prior felony convictions. The underlying allegations involved a forcible sexual assault on a fifteen-year-old victim and an assault that impeded her breathing or blood flow.

After negotiations, the parties proposed the following disposition:

• Dismissal of the kidnapping charge;
• Thirty years’ imprisonment for rape, followed by twenty years’ suspended imposition of sentence; and
• Six years’ imprisonment for aggravated assault, concurrent with the recommended prison sentence for rape.

The written plea agreement did not specify the full range of possible punishments. A separate guilty-plea statement explained that the agreement was between Davis and the State and did not bind the court.

The plea hearing

At the October 30, 2025 hearing, Davis confirmed that he had reviewed, initialed, and signed the plea documents with counsel. He acknowledged his rights and denied that threats or promises had induced his plea. The circuit court did not specifically address the provision stating that the negotiated agreement was not binding on the judge.

The court dismissed the kidnapping charge, accepted Davis’s guilty pleas to rape and aggravated assault, and found a factual basis for them. It then considered his criminal history, including first-degree murder and second-degree escape convictions, and reviewed a victim-impact letter.

Rejecting the recommended punishment as inadequate in light of the offense and Davis’s violent history, the court imposed life imprisonment for rape and six years’ imprisonment for aggravated assault. The hearing ended without objection.

The withdrawal motion

On December 11, 2025, before entry of the sentencing order, Davis moved to withdraw his guilty pleas. He maintained that the proceedings had suggested judicial acceptance of the negotiated disposition and that he had received neither advance notice of its rejection nor an opportunity to withdraw his pleas.

The circuit court denied the motion after a March 5, 2026 hearing. It found that Davis had entered the pleas himself, received effective assistance of counsel, understood the charges and possible punishment, and obtained the contemplated prosecutorial concessions. Crucially, it found that it had never indicated concurrence in the recommended sentence. The sentencing order was then entered, and Davis appealed.

3. Summary of the Opinion

The majority affirmed on three principal grounds:

1. No indicated judicial concurrence: Nothing in the record showed express or implicit concurrence in the proposed sentence. Acceptance of the guilty pleas did not itself establish acceptance of the sentencing recommendation.
2. The alternative warning argument was unpreserved: Davis’s appellate reliance on Rule 25.3(c) and Rule 26.1(b)(iii) advanced a theory the majority concluded had not been presented to the circuit court.
3. General fairness concerns did not establish reversible error: The possibility that unpredictable sentencing might discourage negotiated pleas was not an independent basis for reversal.

The court reviewed the denial of withdrawal for abuse of discretion and found none. Two separate opinions exposed additional disagreements: Justice Womack would have dismissed the appeal as unauthorized, while Justice Bronni would have considered and rejected the warning-related claims on their merits.

4. The Governing Rules

Rule 25.3: Judicial responsibilities concerning plea agreements

Rule 25.3 distinguishes between a judge who has indicated concurrence in a negotiated disposition and one who has not.

The distinction matters because the absence of concurrence does not eliminate the court’s warning responsibilities. It changes which provision governs.

Rule 26.1: Withdrawal after acceptance

Before judicial acceptance, a defendant may withdraw a guilty plea as of right. After acceptance but before entry of judgment, withdrawal is no longer automatic: Rule 26.1(a) permits it to correct a manifest injustice when fair and just, with consideration of the defendant’s reasons and prejudice to the prosecution. The rule does not permit withdrawal after entry of judgment.

Rule 26.1(b) identifies circumstances in which withdrawal is deemed necessary to correct manifest injustice. Three were particularly relevant:

• Subsection (iii): The plea was involuntary or entered without knowledge of the charge or that the imposed sentence could be imposed.
• Subsection (iv): The defendant did not receive promised concessions and the prosecutor failed to seek, or refrain from opposing, them as promised.
• Subsection (v): The court had indicated concurrence, the contemplated concessions were not received, and the defendant did not affirm the plea after proper advice and an opportunity to withdraw.

These provisions protect different interests. A disappointed sentencing expectation does not, without more, prove prosecutorial breach, judicial withdrawal of concurrence, or an uninformed plea.

5. Precedents Cited and Their Influence

Green v. State, 362 Ark. 459, 209 S.W.3d 339 (2005)

Green v. State supplied two central propositions. First, although appeals from guilty pleas are generally prohibited, an appeal from denial of a Rule 26.1 withdrawal motion is permitted because it challenges the ruling on that motion rather than the plea itself. Second, denial of such a motion is reviewed for abuse of discretion.

The majority relied on this precedent to entertain Davis’s appeal and select the governing review standard. Justice Womack challenged its continued validity, but the court did not overrule it. Its appealability rule therefore remained operative in this decision.

Holland v. State, 2015 Ark. 341, 471 S.W.3d 179

Holland v. State explains the demanding nature of abuse-of-discretion review. A reviewing court must find more than ordinary error: the circuit court must have acted improvidently, thoughtlessly, or without due consideration.

This standard framed the majority’s inquiry. The question was not simply whether allowing withdrawal might have been reasonable, but whether denying it exceeded the circuit court’s permissible discretion under the applicable rules.

Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003)

The majority cited Bradford v. State for the mandatory character of Rule 25.3(b). Once a judge has indicated concurrence and later abandons the contemplated disposition, the prescribed notice and opportunity to affirm or withdraw are required.

The decisive limitation was that Davis failed to establish the triggering concurrence. The mandatory protection recognized in Bradford v. State could not resolve that missing factual prerequisite.

Justice Womack separately cited Justice Glaze’s dissent in Bradford v. State to support his criticism that judicially created exceptions to the guilty-plea appeal prohibition can undermine the governing rules. That dissenting discussion served a different purpose from the majority’s reliance on the case.

Drake v. State, 103 Ark. App. 87, 286 S.W.3d 728 (2008)

Davis relied on Drake v. State for the proposition that acceptance of a guilty plea can be implicit in the plea colloquy rather than expressed through particular words. He argued by analogy that concurrence in a plea agreement could likewise be inferred from judicial conduct.

The court found Drake v. State distinguishable in its facts and procedural posture. More fundamentally, the analogy did not establish that accepting an admission of guilt also approved the proposed punishment. The opinion did not categorically prohibit implied concurrence; it concluded that this record demonstrated neither express nor implicit concurrence.

Lewis v. State, 101 Ark. App. 176, 272 S.W.3d 113 (2008)

In Lewis v. State, the circuit court had been informed of the agreement and had agreed to sentence the defendant according to its terms. Its subsequent departure from that disposition supported reversal.

The majority distinguished that affirmative agreement from Davis’s case. Awareness of a proposed sentence was not equivalent to an undertaking to impose it. The distinction reinforces the need for a record demonstrating judicial commitment rather than merely judicial knowledge.

Lovett v. State, 2025 Ark. 100

Lovett v. State supplied the preservation principles that barred review of Davis’s alternative theory: arguments cannot ordinarily be raised for the first time on appeal, and a party cannot enlarge or change the grounds advanced below.

Justice Bronni invoked his concurrence in Lovett v. State to support a competing approach. In his view, preservation should turn on whether the issue was fairly raised, not whether a litigant used particular terminology. The dispute concerned how closely Davis’s appellate warning argument corresponded to his trial-level objections.

Hodge v. State, 320 Ark. 31, 894 S.W.2d 927 (1995)

Discussed in Justice Womack’s concurrence, Hodge v. State recognized an appeal where the challenged decision was neither part of guilty-plea acceptance nor an integral part of the associated sentencing procedure. Justice Womack identified it as the foundation for the exception later applied in Green v. State.

He considered that exception inconsistent with the text of the appellate rules and would have overruled both decisions and related cases. The majority did not adopt that position.

Standridge v. Fort Smith Pub. Schs., 2025 Ark. 42, 708 S.W.3d 773

Justice Womack cited Standridge v. Fort Smith Pub. Schs. for the importance of confining statutory and rule-based analysis to the governing text. It supported his methodological objection to judicial expansion of appeal rights, not the majority’s analysis of plea withdrawal.

6. Analysis of the Court’s Legal Reasoning

A. Acceptance of guilt is not approval of punishment

The opinion’s central distinction is between accepting a guilty plea and concurring in a negotiated sentence. A guilty plea admits criminal responsibility and permits conviction. A sentencing recommendation proposes how the court should exercise its sentencing authority. Acceptance of the former does not necessarily adopt the latter.

Davis pointed to several circumstances: removal of the case from the trial calendar, the prosecutor’s statement of the agreement, dismissal of the kidnapping charge, and acceptance of the remaining pleas. The majority found no indication that these steps represented a judicial commitment to the recommended sentence.

Accordingly, Rule 26.1(b)(v) did not apply. The rule protects reliance on indicated judicial concurrence, not an assumption drawn from silence. Although the opinion states broadly that Rule 26.1 does not contemplate withdrawal where defense counsel failed to seek concurrence, that statement must be read in context: absence of concurrence defeats the concurrence-based ground, not every independent ground for withdrawal.

B. Prosecutorial performance and judicial concurrence are separate questions

Rule 26.1(b)(iv) concerns the prosecutor’s failure to honor promised conduct. Here, the State sought dismissal of kidnapping and presented the recommended disposition. The circuit court found that the contemplated concessions had occurred, emphasizing dismissal of the kidnapping charge.

A judge’s refusal to impose a recommended sentence is analytically different from the prosecutor’s failure to recommend it. The negotiated recommendation does not itself bind the court unless the relevant requirements for judicial concurrence are satisfied.

C. Preservation prevented resolution of the warning issue

Davis alternatively argued that, without concurrence, Rule 25.3(c) required an open-court warning that the proposed sentence was nonbinding. He connected the alleged omission to Rule 26.1(b)(iii), claiming that he had not understood that life imprisonment could be imposed.

The majority did not decide whether the warning was adequate or whether Davis’s plea was sufficiently informed. It held that this theory differed from the concurrence-based grounds presented below and was therefore unpreserved.

This limitation is essential. The majority did not hold that a signed disclaimer necessarily satisfies Rule 25.3(c), or that failure to provide the required warning is harmless. Nor did it resolve the legal significance of the plea agreement’s omission of the punishment range. Those merits questions remained outside its decision.

D. General fairness did not supply an independent remedy

Davis argued that denying defendants the benefit of negotiated dispositions could discourage plea bargaining. The court rejected that policy argument as a basis for reversal. Its approach required Davis to establish an applicable legal ground for withdrawal rather than rely solely on the severity of the difference between the recommendation and the sentence imposed.

7. The Separate Opinions

Justice Womack: The appeal should have been dismissed

Justice Womack agreed that Davis would lose on the merits but disputed the court’s authority to entertain the appeal. Arkansas Rule of Appellate Procedure–Criminal 1(a) generally prohibits appeals from guilty pleas, subject to Rule 24.3(b)’s specified conditional-plea exceptions. None applied here.

In his view, appealing denial of withdrawal is effectively appealing the plea itself. He would have overruled the contrary precedents and required a formal rule amendment before permitting such appeals. His proposed disposition was dismissal, not affirmance. Because that position did not command a majority, it does not alter the appealability rule applied in this case.

Justice Bronni: The warning claims were preserved but unsuccessful

Justice Bronni agreed that the record did not establish judicial concurrence. He disagreed, however, with the majority’s refusal to consider the warning-related claims. He regarded Davis’s objections as sufficiently implicating both the warning requirement and the defendant’s understanding of potential punishment.

On the merits, he considered the court’s questioning about the plea documents, counsel’s review, and Davis’s understanding sufficient to satisfy Rule 25.3(c) and defeat the Rule 26.1(b)(iii) claim.

There is a notable difference in the opinions’ treatment of the colloquy. The majority stated that the court did not address the particular nonbinding-agreement provision; Justice Bronni regarded the broader questioning as confirming the necessary understanding. Because the majority declined merits review, his conclusion about compliance is not the court’s holding.

Justice Bronni also warned that procedural avoidance could invite later Rule 37.1 litigation. That observation identified a possible collateral consequence; it did not establish that any future postconviction claim would succeed.

8. Potential Impact and Practical Significance

• A clear record of concurrence becomes especially important. Defense counsel should seek an on-record indication of whether the judge concurs in the proposed disposition rather than infer approval from routine plea proceedings.
• Courts should distinguish concurrence from nonbinding recommendations. The opinion expressly endorses practices that make defendants’ understanding of their rights and sentencing exposure apparent on the record.
• Alternative grounds should be raised below. A concurrence-based objection may not preserve a separate claim concerning inadequate warnings or lack of sentencing knowledge. Counsel should articulate each theory and its factual basis.
• Written disclaimers are not conclusively approved as substitutes for oral warnings. The majority’s preservation ruling leaves that question unresolved here.
• Appeals from Rule 26.1 denials remain available under existing precedent. Justice Womack’s objection signals disagreement, but not a change in the governing rule.
• The decision does not give judges unrestricted sentencing discretion. It addresses the particular grounds for withdrawing these pleas; other applicable sentencing and plea safeguards remain distinct questions.

The decision’s precedential reach is therefore narrower than a general rule that defendants must accept every departure from a plea recommendation. It establishes that the circumstances shown here did not prove judicial concurrence and that an unpreserved alternative theory could not supply reversal.

9. Complex Concepts Simplified

Judicial concurrence

An indication that the judge agrees with the proposed disposition. Knowing about an agreement or accepting a guilty plea does not necessarily establish concurrence.

Manifest injustice

A serious unfairness justifying withdrawal after plea acceptance. Rule 26.1 identifies qualifying circumstances, such as an uninformed plea or failure to honor protected concessions.

Preservation

Presenting an issue to the trial court sufficiently to give that court an opportunity to address it before appellate review.

Abuse of discretion

A demanding review standard asking whether the trial court acted without proper consideration, not merely whether another judge might have decided differently.

Nolle prosequi

The prosecution’s formal discontinuance of a charge. Here, the kidnapping charge was dismissed on the State’s motion.

Suspended imposition of sentence

A conditional suspension of punishment. The proposed twenty-year suspension was part of the negotiated recommendation, not the rape sentence ultimately imposed.

Entry of judgment

The formal entry of the judgment or sentencing order. Davis moved after oral sentencing but before that entry, keeping his request within Rule 26.1’s time limit.

Collateral review

A separate postconviction process rather than direct appeal. Justice Bronni referred to the possibility of later litigation under Rule 37.1.

10. Conclusion

Brock Davis v. State of Arkansas establishes that judicial silence and acceptance of guilty pleas did not, on this record, demonstrate concurrence in a negotiated sentence. Without that concurrence, Davis could not invoke Rule 26.1(b)(v) when the court imposed life imprisonment instead of the recommended term.

The decision also underscores the decisive role of preservation: the majority left the adequacy of the sentencing warnings unresolved because Davis had not presented that alternative theory below. Its broader lesson is procedural clarity—make judicial concurrence explicit, explain sentencing exposure on the record, and distinctly present every ground for withdrawal before seeking appellate relief.