Todd v. State

Cite as 2016 Ark. App. 204
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-15-916
MICHAEL TODD Opinion Delivered April 13, 2016
APPELLANT
APPEAL FROM THE HEMPSTEAD
V. COUNTY CIRCUIT COURT
[NOS. CR-2009-74 and CR-2009-75]
STATE OF ARKANSAS HONORABLE DUNCAN
APPELLEE CULPEPPER, JUDGE
AFFIRMED
RITA W. GRUBER, Judge
Michael Todd appeals the sentences that the Circuit Court of Hempstead County
imposed on him after it revoked his suspended imposition of sentence (SIS) in two criminal
cases. He contends, as he did at the revocation hearing, that it was error for the circuit court
(1) to run the sentences consecutively rather than concurrently and (2) to sentence him
without evidence of the date on which the SIS began in the underlying cases. He also argues
on appeal that his original sentences were facially illegal pursuant to Ark. Code Ann. § 5-4-
301(a)(2)(A) (Supp. 2009). See State v. Webb, 373 Ark. 65, 69, 281 S.W.3d 273, 276 (2008)
(noting that a void or illegal sentence is an issue of subject-matter jurisdiction, which cannot
be waived by the parties and may be addressed for the first time on appeal). We affirm.
In case number CR-2009-74, Todd was charged as a habitual offender with ten Class
C felonies—nine counts of fraudulent use of a credit card or debit card, and one count of theft
by receiving. In case number CR-2009-75, he was charged as a habitual offender with Class
Cite as 2016 Ark. App. 204
D felony breaking or entering and Class C felony theft of property, and was also charged with
two Class A misdemeanors—theft of property and fraudulent use of a credit card or debit
card. He pleaded no contest to all charges and on May 28, 2009, was sentenced on each
felony to concurrent terms of eight years’ imprisonment in the Arkansas Department of
Correction (ADC) to be followed by seven years’ SIS. Conditions of the SIS required that
Todd obey all federal and state laws.
On June 4, 2014, the State filed its petition to revoke his SIS in both cases, alleging
that Todd had violated conditions by committing the crime of forgery in Howard
County—for which he had been convicted—and the crimes of commercial burglary, breaking
or entering, and theft of property in Hempstead County. At a June 9, 2014 revocation
hearing, the circuit court found the allegations in the revocation petition to be true. Todd
objected to sentencing without proof of his release from the ADC. The circuit court took
the matter under advisement. On June 11, 2014, the State filed a motion to reopen the
record for supplemental proof. In a previous opinion, we recounted the proceedings that
took place when the revocation hearing resumed:
On June 16, 2014, the circuit court granted the State’s motion to reopen record for
supplemental proof. The State entered a certified copy of the PEN pack, and the
circuit court found that appellant had five years remaining on his suspended sentence.
Based upon that finding, appellant was sentenced, in CR-2009-74, to ten
sixty-month sentences to run consecutive to each other and consecutive with the
Howard County case and the other Hempstead County cases. In CR-2009-75, the
circuit court sentenced appellant to two sixty-month sentences to run consecutive to
each other and consecutive with CR-2009-74 and consecutive with the Howard
County case and the other Hempstead County cases for a total, in both cases, of sixty
years in the ADC. Sentencing orders were filed on June 26, 2014, and amended
sentencing orders were filed on July 8, 2014.
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Cite as 2016 Ark. App. 204
Todd v. State, 2015 Ark. App. 356, at 2–3, 465 S.W.3d 435, 436.1
Todd now argues in his first point that at the time of his revocation sentencing, the
circuit court lacked jurisdiction “to change, modify, alter, or amend the judgment from
concurrent to consecutive.” See Burks v. State, 2009 Ark. 598 at 4 n.2, 359 S.W.3d 402, 406
(noting that a circuit court may not modify a valid sentence once execution of the sentence
has begun); Lambert v. State, 286 Ark. 408, 409, 692 S.W.2d 238, 239 (1985) (stating the
general rule that if the original sentence is illegal, even though partially executed, the
sentencing court may correct it). He also argues that his original sentencing of seven years’
SIS was illegal on its face under Ark. Code Ann. § 5-4-301(a)(2)(A), which prohibits
suspending imposition of sentence if the defendant has previously been convicted of two or
more felonies.
Because sentencing is entirely a matter of statute in Arkansas, no sentence is to be
imposed other than as statutorily prescribed. Ark. Code Ann. § 5-4-104 (Supp. 2009); e.g.,
Esry v. State, 2014 Ark. 539, at 4, 453 S.W.3d 144, 146 (per curiam). A sentence within the
limits set by statute is a legal sentence, and a void or illegal sentence is one exceeding the
statutory parameters for the convicted defendant’s offense. Id.
Todd argues that in May 2009 the trial court did not have authority to sentence him
to a suspended sentence because, as a habitual offender, he was not entitled to a suspended
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We dismissed Todd’s first appeal on finding that his notice of appeal was flagrantly
deficient and ineffective and that we lacked jurisdiction because of the ineffective notice of
appeal. Id. at 6, 465 S.W.3d 435, 436–38. The present appeal follows our supreme court’s
granting Todd’s motion for belated appeal. Todd v. State, 2015 Ark. 452, at 2 (per curiam).
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sentence under Ark. Code Ann. § 5-4-301(a)(2)(A). He concludes, therefore, that the
original sentence imposed in May 2009 was illegal. We disagree.
A previous case, Chadwell v. State, 80 Ark. App. 133, 91 S.W.3d 530 (2002), presented
a similar argument that the original sentence was illegal because, based on the defendant’s
habitual-offender status, the circuit court lacked authority to suspend a portion of it. The
appellant in that case cited language of Ark. Code Ann. § 5-4-104(e)(4) (1987), which later
was repealed but used language identical to that now found in Ark. Code Ann. §
5-4-301(a)(2)(A), which governs the present case. Both statutes provide that a circuit court
shall not suspend imposition of sentence if it is determined, pursuant to other statutory
provisions, that the defendant has previously been convicted of two or more felonies. The
Chadwell court found that the circuit court, being authorized to sentence the appellant as a
habitual offender to a range of ten to twenty years and having imposed a sentence of ten years’
imprisonment, did not lack authority to impose an additional ten-year suspended sentence.
Chadwell, 80 Ark. App. 133, 136, 91 S.W.3d 530, 532. We interpreted the statute to prohibit
suspension of a term of imprisonment, but we found that—as long as only a portion was
suspended beyond the statutory minimum term—the trial court was free to suspend an
additional term in the habitual range. See Chadwell, 80 Ark. App., at 136–37, 91 S.W.3d 530,
532; cf. State v. O’Quinn, 2013 Ark. 219, 427 S.W.3d 668 (finding a suspension below the
habitual minimum term of imprisonment to be illegal).
“The legislature is presumed to be familiar with the appellate courts’ interpretation of
its statutes, and it can amend a statute if it disagrees with those interpretations; absent such an
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amendment, the interpretation of the statute remains the law.” Pedraza v. State, 2015 Ark.
App. 205, at 5. Because the General Assembly has not rejected Chadwell v. State, supra, our
interpretation of former section 5-4-104(e)(4) refutes Todd’s argument that section
5-4-301(a)(2)(A) prohibits the suspension of any portion of a habitual sentence.
Todd next contends that the State failed to present evidence of the date his suspension
began for the purpose of determining the remaining time of suspension. On June 16, 2014,
when the revocation hearing reconvened, the State presented its supplemental evidence of
Todd’s release date from the ADC. The State introduced a “pen pack” showing that Todd
was released on June 28, 2012, from the ADC to the supervision of the Texarkana P &
P—which governs probation and parole; the State contended that after June 28, 2012, he had
just over five years left on each suspended sentence. Todd argues that because the Texarkana
unit is part of the ADC, the evidence was insufficient to show that he was “set at liberty” and
that his suspensions thus began to run on June 28, 2012. We find that the State sufficiently
proved, through documentation, the date that Todd was “set at liberty”—albeit under
supervision.
Todd was charged and sentenced as a habitual offender for eleven Class C felonies and
one Class D felony, with respective maximum sentences of thirty years and fifteen years. See
Ark. Code Ann. § 5-4-501(b)(2) (setting forth extended terms of imprisonment for defendants
meeting the criteria of section 5-4-501(b)(1)). The circuit court, which had authority in the
original sentencing to impose up to eleven consecutive thirty-year terms of imprisonment and
one fifteen-year term of imprisonment, imposed only an aggregate term of eight years’
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imprisonment to be followed by seven years’ SIS.
Pursuant to the plain language of Ark. Code Ann. § 5-4-301(d)(2) and Ark. Code
Ann. § 5-4-309(f)(1)(A), the circuit court was authorized at revocation to modify the original
order and impose any sentence that originally could have been given. Todd was originally
placed on suspension on multiple counts, served concurrently by statute. The circuit court
revoked the suspended sentences on all remaining counts, ordering sentences after revocation
within the parameters authorized by statute for each of the felony convictions. See Ark. Code
Ann. § 5-4-401. Furthermore, the trial court was permitted, based on Ark. Code Ann. §
5-4-403(a), to order that multiple sentences of imprisonment for multiple offenses be run
consecutively, including those where suspension had been revoked. See also Cheater v. State,
2010 Ark. App. 652, at 3 (rejecting Cheater’s argument that the circuit court sentenced him
to illegal consecutive sentences upon revocation because it had originally ordered concurrent
sentences).
For the foregoing reasons, we affirm.
ABRAMSON and VAUGHT, JJ., agree.
Anthony S. Biddle, for appellant.
Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., for appellee.
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