¶1dissenting. The appellant entered his guilty plea based upon his understanding of an agreement between his lawyer and the prosecuting attorney. The court refused to accept the recommendation and the appellant then attempted to withdraw his plea. A.R.Cr.P. Rule 26.1 (a) provides that the court shall allow the withdrawal of a guilty plea in order to correct a manifest injustice. Rule 26.1(c) states:
Withdrawal of a plea of guilty or nolo contendere shall be deemed to be necessary to correct a manifest injustice if the defendant proves to the satisfaction of the court that:. . . (v) he did not receive the charge or sentence concessions contemplated by a plea agreement in which the trial judge had indicated his concurrence. . . .
¶2No proof was needed to show that the defendant did not receive the sentence contemplated by himself and the prosecutor. The question is whether the trial judge had indicated his concurrence in the recommendation. It is not disputed that the judge explained to the appellant before the entry of his plea that the court was not bound to accept it.
¶3The case of Zoller v. State, 282 Ark. 380, 669 S.W.2d 434 (1984), supports the appellant’s contention that he should have been permitted to withdraw his guilty plea. The trial judge in Zoller had stated that he realized that he had indicated or given the impression that he would accept the recommendation on the plea bargain.
¶4Certainly the indications are that the judge in the present case intended to accept the recommendation, if the background check and presentence report proved the appellant deserved to be sentenced in accordance with the agreement. The majority opinion confuses the judge’s unequivocal declaration that he was not bound by the agreement with the judge’s indication that he intended to go along with the agreement. The statement by the majority that the trial judge had explained to the appellant that the judge would not be bound by the plea agreement is nothing more than a straw man.