Clinkscale v. State , 269 Ark. 324 ( 1980 )

Darrell Hickman, Justice.

Ivory Joe Clinkscale was convicted of theft of property and sentenced to 10 years imprisonment, consecutive to a term he is presently serving.

He alleges only one error on appeal: The trial court was wrong in sentencing him because it considered prior convictions not alleged in the information.

The information, filed January 18, 1979, alleged Clinkscale had been convicted of “two or more” prior felonies and asked for an increased sentence pursuant to Ark. Stat. Ann. § 41-1001 (Repl. 1977).

Clinkscale waived a jury trial and was convicted. There is no argument raised regarding his guilt.

During the sentencing procedure the State moved to introduce previous convictions. The defense objected and the State moved to allow its amended information alleging four or more previous convictions to stand. The request was not granted; neither party asked for a continuance.

Counsel for the State and the defense presented arguments on this issue to the court. The State named the five prior convictions and argued that it had a right to present this evidence because it had alleged “two or more” prior convictions. The trial judge inquired as to the possibility of a sentence. It was determined that with two prior convictions the sentence could be from three to 15 years. Then, the court stated:

THE COURT:

For the record, I’m only taking into consideration the two priors that were contained in the information. And that still gives a possible sentence of three to fifteen, the way I understand it. I’m only going to sentence him to ten years. . . .

However, just before the remark, the judge had said:

THE COURT:

It will be the judgment of the Court, Mr. Clinkscale, that you be sentenced to the Arkansas Department of Correction for a period of ten years, this time to be consecutive to the time that you are serving under your present sentence. That probably means, Mr. Clinkscale, an additional — With your record, it would probably mean an additional five or six years.

Mr. Clinkscale, there’s one thing — and I think I speak for any other Judge that’s sitting here. It’s one thing to have one offense for stealing and maybe even two but the idea since 1970 you have all these — [Emphasis added.]

Just after the “For the record” statement, the judge remarked:

The people of this community are entitled to be safe in their stores and in their homes without having somebody be a perpetual crime wave walking around here stealing every time he gets out of prison.

There is no doubt the judge considered the other convictions, which were pressed upon him by the attorney for the State; the judge’s remarks are evidence that he considered those convictions.

There is nothing at all to the State’s argument that because an information alleges two or more convictions, more than two can be admitted against a criminal defendant. Allegations of prior convictions are just like essential elements of a crime, only those that are alleged can be used. Finch v. State, 262 Ark. 313, 556 S.W. 2d 434 (1977).

The question then becomes, did the trial judge’s consideration of other convictions prejudice Clinkscale? The State argues there was no prejudice because the court was sitting without a jury and made the statement that only two convictions were considered “For the record.”

We dealt with this question in Mason v. Morel, 234 Ark. 660, 354 S.W. 2d (1962), and Hickey v. State, 263 Ark. 809, 569 S.W. 2d 64 (1978). In Hickey, on denial of rehearing, it was pointed out that while there is a presumption the trial judge will only consider competent evidence, it can be overcome when there is an indication that the trial judge did give some consideration to the inadmissible evidence.

That is precisely the case we have, an indication that the judge gave some consideration to improper evidence. Therefore, we have no alternative but to find that Clinkscale was prejudiced. Therefore, the judgment is reversed and the cause remanded.

Reversed and remanded.

Stroud, J., dissents. Mays, J., not participating.