The appellant in the case at bar admitted that he raped a five-year-old girl. After he was charged with that offense, he contended that his confession was illegally obtained and moved to suppress it. The trial court denied the motion. Pursuant to Ark. R. Crim. P. 24.3(b), appellant entered a conditional guilty plea and was sentenced to twenty-five years’ imprisonment. He now appeals from the trial court’s denial of his motion to suppress his confession. We affirm.
Rule 24.3(b) presents an exception to the rule prohibiting appeal from a guilty plea, but only for the purpose of determining on appeal whether an appellant should be allowed to withdraw his plea if it is concluded that evidence should have been, but was not, suppressed as having been illegally obtained. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997).
A custodial statement is presumptively involuntary; it is the State’s burden to prove by a preponderance of the evidence that a custodial statement was given voluntarily and was knowingly and intelligently made. Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997); Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996). When reviewing the voluntariness of confessions, we make an independent determination based on the totality of the circumstances, and reverse the trial court only if its decision was clearly erroneous. Humphrey v. State, supra. In determining whether a confession was voluntary, we consider the age, education, intelligence, and vulnerability of the accused; lack of advice as to his constitutional rights; statements made by the interrogating officer; the length of detention; the repeated and prolonged nature of questioning; and the use of physical punishment. Hood v. State, 329 Ark. 21, 947 S.W.2d 328 (1997). The credibility of the witnesses who testified concerning the circumstances surrounding the defendant’s custodial statement is for the trial court to determine. Williams v. State, 55 Ark. App. 156, 934 S.W.2d 931 (1996).
In the case at bar, appellant was not arrested and brought to the police station, but instead surrendered voluntarily. The interview at the police station took less than two hours, and there is no suggestion that he was physically threatened. Appellant was thirty-eight years old, of average intelligence, and had three years of college education.
Appellant’s argument for reversal centers on three statements made by the interrogating officer during the interview: that probation was a possibility, that she could recommend a bond amount ranging from $50,000 to $1,000,000, and that appellant would receive a lesser sentence if he cooperated.
A statement induced by a false promise of reward or leniency is not a voluntary statement. Clark v. State, 328 Ark. 501, 944 S.W.2d 533 (1997). From our careful review of the record in fight of this principle, we conclude there is no evidence that appellant’s confession was obtained in exchange for a false promise. See id.
Some police statements are so clearly false promises of rewards that we do not find it necessary to look beyond the statement and the police action to decide that the confession was involuntary. Examples of such statements are found in Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975), in which the prosecutor told a defendant, who later received a life sentence, that a confession “would not result in more than 21 years incarceration,” and in Teas v. State, 266 Ark. 572, 587 S.W.2d 28 (1979), in which the defendant received the maximum sentence after being promised a recommendation of leniency and perhaps even dismissal of the charge. Such false promises of rewards constitute prosecutorial misconduct, and the confessions induced by them are to be automatically excluded. .
Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988).
Focusing, then, on the police statement and subsequent action, the record shows that the following transpired with respect to the possibility of probation:
[Appellant]: Is there any way I can get, get this brought down to a, like a misdemeanor so that I can be on probation so I can take care of my family?
[Officer Wyatt]: It won’t be brought down to a misdemeanor, but you . . . you can uh, end up getting lesser time and get on probation or something.
[Appellant]: If. . . do you think I could have probation?
[Officer Wyatt]: It’s a possibility.
[Appellant]: My concern is that, if I were sent to a penitentiary, there would be no money to take care of my family.
[Officer Wyatt]: That’s why, uh, federal aid’s out there. And .your wife is capable of getting a job.
[ Appellant] : Okay. But the, the lifestyle and the money that she’s accustomed to would not be . . .
[Officer Wyatt]: Well, she’d just have to get used to another lifestyle.
Appellant contends that this constituted a false promise of probation. We disagree. Viewed in context, this exchange clearly shows that appellant was told to expect to serve a term of imprisonment and could not hope to be sentenced to probation in lieu of imprisonment. Although it is true that probation is no longer available as an alternative to imprisonment for a class Y felony, Ark. Code Ann. § 5-4-301 (a)(1)(C) (Repl. 1997), any additional term of imprisonment may properly be suspended under § 5-4-104(c), the result being, in effect, unsupervised probation. Although the interrogating officer was technically, incorrect in stating that probation per se could follow a term of imprisonment, a misstatement of fact by the officer, standing alone, does not invalidate a subsequent confession. Pyles v. State, 329 Ark. 73, 947 S.W.2d 754 (1997). Viewing the officer’s statements in context, we do not think appellant could reasonably have believed that he was being offered probation in lieu of imprisonment.
Nor do we find a false promise of reward in the police officer’s statement that she could recommend a bond amount ranging from $50,000 to $1,000,000. The court set bond at $100,000, at the lower end of the range mentioned by the officer and, in fact, the record reflects that appellant was released on bond soon after undergoing a court-ordered psychiatric examination. On this record, we cannot say that the officer’s statement regarding bond amount constituted a false promise or inducement.
Next, appellant contends that his confession was invalidated by the officer’s statement, following a discussion of the possibility of life imprisonment for a class Y felony, that: “[T]he more cooperative you are, the less your sentence gonna be. And I guarantee you that.” Comparing the police statement with the subsequent action, the record shows that appellant received a sentence of twenty-five years. The authorized range of punishment for a class Y felony is not less than ten years and not more than forty years, or life. Ark. Code Ann. § 5-4-401 (Repl. 1997). Furthermore, the prosecuting attorney stated, without objection, that appellant was offered a reduced sentence because of his cooperation, and that, in three specific cases involving similar facts where the defendants did not cooperate, the State sought and obtained fife sentences. Finally, we note that the interrogating officer testified that, during a break in the interview, she informed appellant that she had no control over giving him probation or reducing the charges against him because these matters were in the hands of the judge, jury, and prosecuting attorney. Ultimately, the question is one of credibility regarding the circumstances surrounding appellant’s custodial statement, and that question is for the trial court to determine. Williams v. State, supra. Considering the totality of the circumstances, it appears that any promise of a lesser sentence that could be inferred from the officer’s statement was kept by the State, and we find no prejudicial error. Tippitt v. State, 285 Ark. 294, 686 S.W.2d 420 (1985).
Affirmed.
Arey, Crabtree, and Meads, JJ., agree. Rogers and Griffen, JJ., dissent.