Trif v. State , 503 S.W.3d 802 ( 2016 )

Cite as 2016 Ark. App. 452
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-16-57
OPINION DELIVERED OCTOBER 5, 2016
GHEDEON TRIF APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
NINTH DIVISION
[NOS. 60CR-10-1265; 60CR-10-2198]
V.
HONORABLE MARY SPENCER
McGOWAN, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED IN PART; REVERSED
IN PART
ROBERT J. GLADWIN, Chief Judge
Ghedeon Trif was sentenced in the Pulaski County Circuit Court on September 29,
2015, pursuant to a probation revocation that involved two cases with a conviction date of
October 14, 2010. On appeal, Trif contends that the trial court lacked jurisdiction to revoke
because his probation had expired on October 14, 2013. We affirm in part and reverse in
part.
I. Procedural History
On October 14, 2010, Trif pled guilty to obtaining drugs by fraud in the circuit
court case number CR 2010-1265. On the same day, he pled guilty to two counts of
delivery of a controlled substance and one count of possession of a controlled substance with
intent to deliver in case number CR 2010-2198. He was sentenced to thirty-six months’
probation in each case.
Cite as 2016 Ark. App. 452
On February 10, 2012, the State filed a petition for revocation under each case
number, CR 2010-1265 and -2198, but a bench warrant for Trif’s arrest was issued only
under the latter case number. The State alleged that Trif had violated the terms of his
probation because he was arrested on January 29, 2012, in Garland County for driving while
intoxicated and refusing to submit to a chemical test. This petition was amended on July 6,
2012, to add that Trif had also violated probation by leaving Pulaski County without
permission on the date that he had received the DWI and refusal-to-submit charges.
The bench warrant was recalled on February 14, 2012, but it was reissued on
November 5, 2012, still only under case number 10-2198. On November 8, 2012, Trif
pled guilty to violating his probation under both case numbers, but, no sentencing order
was filed because he was given an appointment for a presentence interview and a January
10, 2013 court date for sentencing. The arrest warrant was recalled on November 9, 2012.
Trif failed to appear for the sentencing hearing on January 10, 2013, and an arrest
warrant was issued only under case number 10-2198. The violations listed in the warrant
included the original three counts of possessing a controlled substance and “probation
revocation.” He was arrested on February 11, 2013, for first-degree terroristic threatening.
At the hearing on March 4, 2013, Trif’s counsel requested that the trial court pass the case
until the new charges on terroristic threatening were resolved. No sentencing order was
filed.
On April 1, 2013, the State filed an amended petition for revocation under both case
numbers and alleged that, in addition to the violations listed in the earlier petitions, Trif had
failed to appear in court on January 10, 2013, and had been arrested on February 11, 2013,
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Cite as 2016 Ark. App. 452
for terroristic threatening. An arrest warrant was issued only under case number 10-2198 on
April 1, 2013, and the violations listed were three counts of possession of a controlled
substance and “probation revocation.” The warrant was served on April 4, 2013.
On June 17, 2013, Trif pled guilty, filing a plea statement under both case numbers,
and he again was admonished to complete a presentence interview and return to court for
sentencing. No sentencing order was filed.
On July 10, 2013, the State filed an amended petition for revocation, adding to the
original allegations that he had been arrested for attempted rape on July 5, 2013. An arrest
warrant was issued on July 10, 2013, only under case number 10-2198, listing the violations
as being three counts of possession of a controlled substance and one count of “probation
revocation.” Trif was arrested pursuant to the warrant on July 24, 2013.
On January 29, 2014, the State filed an amended petition for revocation, listing the
following offenses:
[H]e was arrested on 1-29-12 by the Garland County Sheriff’s Department for
Driving While Intoxicated and Refusal to Submit to Chemical Test, left Pulaski
County without permission from his Probation Officer on 1-29-12, failed to appear
in 9th Division Court on 1-10-13, was arrested by Pulaski County Sheriff’s Office on
2-11-13 for Terroristic Threatening-1st, was arrested by Saline County Sheriff’s
Office on 7-5-13 for Attempted Rape, and was arrested by Alexander Police on 12-
20-13 for Violation of Protection Order and Driving on a Suspended Driver’s
License. The above violations occurred after he was placed on probation.
The revocation petition was amended on February 26, 2014, to add that Trif had failed to
appear in circuit court on February 20, 2014.
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Cite as 2016 Ark. App. 452
On July 28, 2015, Trif again pled guilty to the probation revocation under both case
numbers. 1 No sentencing order was filed, and the trial court continued the sentencing
hearing to September 22, 2015. At that hearing, the trial court sentenced Trif on four Class
C felonies, which included the revocations under both case numbers 10-1265 and -2198.
The trial court stated, “The sentence of this court is going to be ten years. It is going to
run consecutive to the sentence that you’re serving now; no fine, no court costs.” 2 This
appeal timely followed.
II. Applicable Law
The issue of whether a circuit court can revoke probation after the expiration of the
probation period is one of jurisdiction. Carter v. State, 350 Ark. 229, 233, 85 S.W.3d 914,
916 (2002). Although Trif did not raise a jurisdictional argument below, whether a trial
court has jurisdiction to revoke probation is an argument that we may address for the first
time on appeal. See Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003).
“Following a revocation hearing . . . in which a defendant has been found guilty or
had entered a plea of guilty . . . the court may . . . lengthen the period of suspension or the
period of probation within the limits set by § 5-4-306.” Ark. Code Ann. § 16-93-309(a)(2)
(Supp. 2015). A probationary period shall be set for a definite period of time, not to exceed
1
The State moved to amend the revocation petition to read “false imprisonment”
instead of “attempted rape,” and the motion was granted.
2
The trial court’s reference to the “sentence that you’re serving now” related to a
sentence he had received in the Saline County Circuit Court.
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Cite as 2016 Ark. App. 452
the maximum jail or prison sentence allowable for the offense charged. Ark. Code Ann. §
5-4-306 (Repl. 2012).
A court may revoke a suspension or probation subsequent to the expiration
of the period of suspension or probation if before expiration of the period:
(1) The defendant is arrested for violation of suspension or probation;
(2) A warrant is issued for the defendant’s arrest for violation of suspension or
probation;
(3) A petition to revoke the defendant’s suspension or probation has been filed
if a warrant is issued for the defendant’s arrest within thirty (30) days of the
date of filing the petition; or
(4) The defendant has been:
(A) Issued a citation in lieu of arrest under Rule 5 of the Arkansas
Rules of Criminal Procedure for violation of suspension or probation;
or
(B) Served a summons under Rule 6 of the Arkansas Rules of Criminal
Procedure for violation of suspension or probation.
Ark. Code Ann. § 16-93-308(f) (Supp. 2015) (emphasis added); see also McJoy v. State, 2016
Ark. App. 337, at 2 n.1; and Johnson v. State, 2015 Ark. App. 353, at 2 n.2. Our supreme
court has stated the following:
We construe criminal statutes strictly, resolving any doubts in favor of the
defendant. Short v. State, 349 Ark. 492, 79 S.W.3d 313 (2002). We construe a statute
just as it reads, giving the words their ordinary and usually accepted meaning in
common language, and if the language of the statute is plain and unambiguous, and
conveys a clear and definite meaning, there is no occasion to resort to rules of
statutory interpretation. Id. In construing any statute, we place it beside other statutes
relevant to the subject matter in question and ascribe meaning and effect derived
from the whole. Id. However, we will not interpret a statute, even a criminal one,
so as to reach an absurd conclusion that is contrary to legislative intent. Windsor v.
State, 338 Ark. 649, 1 S.W.3d 20 (1999).
Harness v. State, 352 Ark. 335, 342, 101 S.W.3d 235, 240 (2003).
III. Jurisdiction to Revoke Probation
Trif argues that the trial court lacked jurisdiction to revoke his probation on July 28,
2015, because it had expired on October 14, 2013—three years after it had been imposed
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Cite as 2016 Ark. App. 452
by entry of judgment-and-disposition orders in each case on October 14, 2010. Trif asserts
that the trial court did not cause to be entered any judgment or sentencing order extending
his period of probation beyond three years. See Carter, supra (where the circuit court lost
jurisdiction to revoke probation upon expiration of the probation period, probationer was
not arrested, nor was an arrest warrant issued for a probation violation before the probation
period had expired). Thus, Trif claims that the circuit court lacked jurisdiction to revoke
his probation, and this court should reverse and dismiss the two sentencing orders entered
against him.
The State contends that the trial court had jurisdiction to revoke Trif’s probation
based on Arkansas Code Annotated section 16-93-308(f) because he had been arrested for
a probation violation. See Williams v. State, 2015 Ark. App. 245, 459 S.W.3d 814 (where
appellant’s probation was revoked after the original probation period had expired because
he was arrested for the violation prior to his probation’s expiration). Here, Trif was arrested
for a violation of probation on February 11, 2013, April 3, 2013, and July 24, 2013, all prior
to October 14, 2013, thus falling under Arkansas Code Annotated section 16-93-308(f)(1).
The State also contends that, based on Arkansas Code Annotated section 16-93-
308(f)(2), probation may be revoked beyond the probationary period if a valid arrest warrant
has been issued before the expiration of a probation period. Here, warrants were issued for
Trif’s arrest for a violation of his probation on February 10, 2012, November 5, 2012,
January 10, 2013, April 1, 2013, and July 10, 2013. Thus, the State contends that Trif’s
revocation should be affirmed.
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Cite as 2016 Ark. App. 452
In his reply brief, Trif asserts that the arrest warrants relied on by the State were
issued only in case number 10-2198. He contends that the warrants do not satisfy either
subsection 308(f)(1) or 308(f)(2). Trif “acknowledges” that these subsections “have some
ambiguity.” He asks this court to consider whether service of any probation-revocation
arrest warrant, even one not issued or served with respect to the probation-revocation case
at issue, but with respect to some other probation-revocation case, may satisfy the statute.
We hold that it does not and agree that without entry of a sentencing order or an
order extending Trif’s probation, despite Trif’s plea of guilty, the circuit court lost
jurisdiction of case number 10-1265 because Trif was not arrested nor was an arrest warrant
issued pursuant to that case number. Resolving all doubts in the interpretation of probation-
revocation statutes in favor of the defendant, Carter, supra, we hold that the arrest warrant
issued and served in connection with case number 10-2198 was insufficient to give the trial
court jurisdiction to revoke an expired period of probation in case number 10-1265.
Therefore, we reverse and dismiss the sentencing order entered in case number 10-1265 on
September 29, 2015, and affirm the sentencing order in case number 10-2198.
We note that Trif contends this reversal and dismissal would lower his aggregate
sentence from twenty to ten years. 3 We find that the remaining sentencing order under
case number 10-2198 is unambiguous in its 120-month aggregate sentence.
3
The sentencing order filed September 29, 2015, in case number 10-2198 reflects
that Trif was sentenced to 120 months’ imprisonment in the Arkansas Department of
Correction (ADC) for two counts of delivery of hydrocodone/acetaminophen, consecutive
to case number 10-1265 and “time being served,” and 120 months’ imprisonment in ADC
for one count of possession of hydrocodone/acetaminophen, consecutive to all counts or
case number 10-1265 and “time being served.” The sentencing order filed September 29,
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Cite as 2016 Ark. App. 452
Affirmed in part; reversed in part.
VIRDEN and GLOVER, JJ., agree.
Haylie Lott, Deputy Pub. Def., by: Clint Miller, Deputy Pub. Def., for appellant.
Leslie Rutledge, Att’y Gen., by: Evelyn D. Gomez, Ass’t Att’y Gen., for appellee.
2015, in case number 10-1265 reflects that Trif was sentenced to 120 months’ imprisonment
in ADC for one count of obtaining drugs by fraud, consecutive to case number 10-2198
and “time being served.” Both orders reflect that the total time to be served for all offenses
was 120 months. Under “additional info,” the trial court states in both, “Sentenced to 120
months at ADC; no fine & no court costs assessed, no expungement; 123 days jail credit;
both cases to run consecutive with time being served.”
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