Blake H. WALDEN, Appellant v. STATE of Arkansas, Appellee.
No. CR-13-643.
Supreme Court of Arkansas.
May 1, 2014.
2014 Ark. 193
COURTNEY HUDSON GOODSON, Justice.
Dustin McDaniel, Att‘y Gen., by: Kathryn Henry, Ass‘t Att‘y Gen., and Nathan Aylesworth, Law student admitted to practice pursuant to Rule XV of the Rules Governing Admission to the Bar of the Supreme Court under the supervision of Darnisa Evans Johnson, for appellee. Cullen & Co., PLLC, by: Tim J. Cullen, for appellant.
In the instant case, Britton was already wearing a stun belt underneath his clothing during the second day of trial, the same day he caused the disruption. The circuit court had gone so far as to remind him of its presence that morning before trial began and what would happen should he not control himself. Even with that safety measure in place, Britton attempted to verbally and physically attack a witness who was leaving the stand. It took multiple courtroom deputies to restrain him and remove him from the courtroom after the outburst. It is clear from these facts that the decision to require additional restraints was reasonably necessary to maintain order for the remainder of the trial. As previously noted, the circuit court admonished the jury after the incident that Britton still sat before them with the presumption of innocence and that his conduct could not be considered in determining if hе was guilty or not of the current charges.
To conclude, Britton‘s own conduct brought about the need for the restraints, and he was not denied his right to a fair trial. We cannot say that the circuit court abused its 13discretion in determining that the restraints were reasonably necessary to maintain order and security in the courtroom.
Arkansas Supreme Court Rule 4-3(i)
In the instant case, Britton received a sentence of life in prison without parole. Pursuant to
Affirmed.
1Appellant Blake Walden appeals a probation-revocation order from the Sebastian County Circuit Court sentencing him to a term of fourteen years in the Arkansas Department of Correction plus eight years’ suspended imposition of sentence, to run consecutively. On appeal, Walden contends that the fourteen-year sentence imposed upon his revocation is illegal because (1) upon revocation, the circuit court imposed a sentence in excess of the originally imposed suspended sentence; and, (2) the circuit court improperly imposed multiple suspended sentences to run consecutively, despite the fact that his original suspended sentences ran concurrently. In short, Walden contends that the maximum sentence available upon his revocation was eight years’ imprisonment with the two suspended sentences to run concurrently to that term, as opposed to the fourteen-year imprisonment followed by two consecutive terms of suspended sentences imposed by the circuit court. He requests that this cоurt correct his sentence by reducing it to a term of no more than eight years. The court of appeals recommended this case for certification to this court on the basis that it presented an issue of substantial public interest and a legal principle of major importance. This 1court accepted certification, and our jurisdiction is proper pursuant to
Walden‘s original sentences stem from three difference cases, CR2004-087, a felony hot-check conviction; CR2004-088, a second-degree forgery conviction; and CR2012-470, a possession of drug paraphernalia conviction. In the felony hot-check case and the second-degree forgеry case, the trial court sentenced Walden to thirty-six months’ imprisonment with an additional forty-eight months’ suspended imposition of sentence.1 In June 2010, Walden‘s suspended sentences were revoked for these two cases. Upon revocation, he was sentenced to serve an additional thirty-six months’ imprisonment on the hot-check case and an additional forty-eight months’ suspended imposition of sentence on the second-degree forgery case. Then, in 2012, Walden was sentenced to twenty-four months’ imprisonment with forty-eight months’ suspended imposition of sentence for possession of drug paraphernalia in CR2012-470.
On April 23, 2013, the State filed a petition to revoke Walden‘s suspended sentences from all three previous convictions.2 In the revocation petition, the State contended that 1Walden was subject to maximum sentences totaling twenty-two years’ imprisonment. The circuit court revoked Walden‘s suspended sentences on each charge and imposed a sentence of fourteen years’ imprisonment for the felony hot-check charge with two additional suspended sentences of forty-eight months to run consecutively to the term of imprisonment and to each other. In total, Walden was sentenced to fourteen years’ imprisonment with an additional eight years’ suspended imposition of sеntence beginning after the term of imprisonment ended.
This court views an issue of a void or illegal sentence as being an issue of subject-matter jurisdiction, in that it cannot be waived by the parties and may be addressed for the first time on appeal. State v. Webb, 373 Ark. 65, 281 S.W.3d 273 (2008) (citing Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002); Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992)). A sentence is void or illegal when the circuit judge lacks the authority to impose it. Cross v. State, 2009 Ark. 597, 357 S.W.3d 895. If we hold that a trial court‘s sentence was illegal and that the error had nothing to do with guilt, but only with thе illegal sentence, we can correct the sentence in lieu of remanding. Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003).
In Arkansas, sentencing is entirely a matter of statute. Donaldson v. State, 370 Ark. 3, 257 S.W.3d 74 (2007) (citing
Although Walden did not raise his argumеnt that the sentence imposed upon revocation was illegal below, this failure is not a procedural bar to our review of his sentence because an appellant can challenge an illegal sentence for the first time on appeal. For purposes of appellate review, the issue of an illegal sentence is not
Walden contends that the circuit court‘s fourteen-year sentence is illegal because he was only subject to a maximum sentence of eight years based on the suspended sentences he had received in his prior revocation. In addition, Walden contends that, based on the circuit court‘s originally imposed suspended imposition of sentencе, the maximum sentence he could receive upon revocation for the possession of drug paraphernalia charge was forty-eight months. Combining the suspended sentences for all three charges, Walden asserts that he is subject to a maximum sentence of eight years upon revocation. In contrast, the State contends that Walden was subject to a maximum sentence of twenty-two years based on the maximum sentences available for Walden‘s three prior convictions and after subtracting the time Walden previously served in the Arkansas Department of Correction.
As we have already mentioned, Walden pled guilty to a felony hot-check charge and a second-degree forgery charge based on crimes that occurred in 2003. Therefore, Act 1569 of 1999 was in effect at the time Walden committed thеse two crimes. Act 1569 amended Arkansas Code Annotated section 5-4-301(d) to add a new subsection (d)(2), which at that 5time provided:
(d)(1) When the court suspends the imposition of sentence on a defendant or places him on probation, the court shall enter a judgment of conviction only if:
(A) It sentences the defendant to pay a fine and suspends imposition of sentence as to imprisonment or places the defendant on prоbation; or
(B) It sentences the defendant to a term of imprisonment and suspends imposition of sentence as to an additional term of imprisonment.
(2) The entry of a judgment of conviction shall not preclude:
(A) The modification of the original order suspending the imposition of sentence on a defendant or placing a defendant on probation following a revocation hearing held pursuant to 5-4-310; and
(B) Modifications set within the limits of §§ 5-4-303, 5-4-304, and 5-4-306.
Moseley v. State, 349 Ark. 589, 595, 80 S.W.3d 325, 328 (2002). We have recognized that, as a result of the addition of subsection (d)(2) by Act 1569 of 1999, trial courts were specifically authorized to modify original court orders and even add penalties to those orders up to the statutory limits. In addition, the Act permitted trial courts to modify sentences during a revocation proceeding if the Act was in effect at the time the original crime was committed. Cf. Moseley, supra (holding that the trial court was within its jurisdiction to modify a probation order upon revocation) with Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003) (holding that Act 1569 did not permit a trial court to modify a sentence during a probation revocation when the original crime was committed prior to the effective date of the Act).
Furthermore,
(A) If the court revokes a suspension or probation, it may enter a judgment of conviction and may impose any sentence on the defendant that might have been imposed originally for the offense of which he was found guilty.
(B) Provided, that any sentence to pay a fine or to imprisonment, when combined 1with any previous fine or imprisonment
for the offense, shall not exceed the limits of § 5-4-201 or § 5-4-401, or if applicable, § 5-4-501.
Based on the statutes in effect at the time of Walden‘s crimes, trial courts werе permitted to modify original court orders, including orders of incarceration followed by suspended sentences, and impose any sentence that might have been imposed originally. Walden‘s felony hot-check conviction was a Class B felony subject to a maximum term of twenty years’ imprisonment.
As for Walden‘s second-degree forgery conviction, it was a Class C felony subject to a maximum sentence of ten years.
However, our inquiry into the propriety of the circuit court‘s imposed sentences does not end here. Walden maintains that the trial court erred by ordering that he serve his suspended sentences consecutively. In this regard, we turn to
(a) Except as provided in subsection (c) of this section, a period of suspension or probation commences to run on the day it is imposed.
(b) (1) Whether imposed at the same or a different time, multiple periods of suspension or probation run concurrently.
(2) The period of a suspеnsion or probation also runs concurrently with any federal or state term of imprisonment or parole to which a defendant is or becomes subject to during the period of the suspension or probation.
(c) If a court sentences a defendant to a term of imprisonment and suspends imposition of sentence as to an additional term of imprisonment, the period of the suspension commences tо run on the day the defendant is lawfully set at liberty from the imprisonment.
As we have noted, sentencing is entirely a matter of statute in this state. Donaldson, supra;
The plain language of section 5-4-307(b)(l) prohibits a circuit court from running Walden‘s suspended sentences for second-degree forgery and possession of drug paraphernalia consecutively to each other. Therefore, we hold that Walden‘s sentence is illegal to the extent that the trial court ordered multiple periods of suspension to run consecutively, rather than concurrently as required by section 5-4-307(b)(l).
Finally, we examine the propriety of the сircuit court‘s order running Walden‘s suspended sentences for second-degree forgery and possession of drug paraphernalia consecutively with his fourteen-year prison sentence for the felony hot-check conviction. Walden contends that because the circuit court ordered his original sentences for the felony hot-check and second-degree forgery convictions to run concurrently, the court is precluded from ordering those sentences to run consecutively upon revocation. Walden‘s argument is misplaced, and we reject his contention that the trial court was not authorized to run the sentences consecutively because his original sentences were to run concurrently. However, we hold that, pursuant to
While we have previously held that a suspended imposition of sentence does not begin to run until after a term of imprisonment ends when both are imposed as a sentence for a single crime, we have not addressed the issue of whether a circuit court may order a suspended sentence for one or more crimes to run consecutively to a term of imprisonment for a separate crime. See Harness, supra (holding that when a defendant is sentenced to a term of imprisonment followed by a suspended sentence for a single offense, the suspended sentence does not commence until the term of imprisonment has ended and, therefore, a circuit court lacks jurisdiction to revoke the suspended sentence during the defendant‘s incarceration). The State cоntends that
We find additional support for this interpretation from our holding in Seamster v. State, 2009 Ark. 258, 308 S.W.3d 567. In that case, the defendant received a sentence of imprisonment for one crime and a suspended sentence for his second crime. During his period of imprisonment, the circuit court revoked his suspended sentence. On appeal, relying on Harness, he contended that the trial court could not revoke his suspended sentence because that sentence did not commence until his release from incarceration. We held that, in accordance with section 5-4-307(b)(2), his suspended sentence ran сoncurrently with the term of imprisonment and, therefore, the circuit court did have jurisdiction to revoke his suspended sentence during his term of imprisonment.
Finally, we note that when multiple sentences of imprisonment are imposed on a defendant convicted of more than one offense, including an offense for which a previous suspension or probation has been revoked, the sentences shall run concur-
In conclusion, Walden‘s sentences for second-degree forgery and possession of drug paraphernalia are illegal to the extent that the circuit court ordered multiple periods of suspension to run consecutively, rather than concurrently as required by section 5-4-307(b)(l). In addition, Walden‘s suspended sentences on those same two charges are illegal to the extent that they run consecutively to the imprisonment imposed for his fеlony hot-check conviction. Because neither issue relates to Walden‘s guilt, we can correct the sentence in lieu of remanding. Harness, supra. Therefore, we affirm the circuit court‘s sentence of fourteen years’ imprisonment imposed for Walden‘s felony hot-check conviction, but modify the forty-eight month suspended sentence for second-degree forgery and the forty-eight month suspended sentence for possession of drug paraphernalia to run concurrently with each other and concurrently with the term of imprisonment imposed for his felony hot-check conviction.
Affirmed as modified.