Adams v. State

Cite as 2014 Ark. App. 718ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-14-245
JOHN EARL ADAMS Opinion Delivered December 17, 2014
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT,
SEVENTH DIVISION
[NO. 60CR-13-919]
STATE OF ARKANSAS
APPELLEE HONORABLE BARRY SIMS, JUDGE
AFFIRMED
PHILLIP T. WHITEAKER, Judge
Appellant John Adams appeals from an order of the Pulaski County Circuit Court
sentencing him to a total of nine years’ imprisonment in the Arkansas Department of
Correction. He argues that the sentences imposed by the circuit court exceeded the
maximum sentences that could be imposed and were therefore illegal. We disagree and
affirm.
Adams entered guilty pleas to five separate felony offenses in August 2008. In those
five cases, the Pulaski County Circuit Court sentenced him to concurrent sentences of
twenty years’ imprisonment, with nine of those years suspended. In July 2010, Adams
pleaded guilty to another felony; for this offense, he was sentenced to six years in prison with
four years suspended. Subsequently, on the same date in March 2013, the State filed petitions
Cite as 2014 Ark. App. 718to revoke in all six felony cases, alleging that Adams had violated the terms of his suspended
imposition of sentences (SIS) by committing two new counts of theft by receiving. Adams
entered pleas of guilty to the six revocation petitions and to one count of theft by receiving.
The guilty pleas were entered without a negotiated agreement for sentencing. As a result,
the circuit court was to determine the sentence to be imposed.
The circuit court held a sentencing hearing at which counsel for both the State and
Adams presented arguments pertaining to sentencing. The court sentenced Adams, in the
five cases in which he originally received nine years’ SIS, to nine years in prison; in the one
case in which Adams had been sentenced to four years’ SIS, the court sentenced him to four
years’ imprisonment. The six sentences were ordered to run concurrently, for a total of nine
years.
On appeal, Adams argues that the sentences imposed by the circuit court were illegal.1
He contends that the longest sentence the circuit court could have imposed upon revocation
was fifty-seven months.
Sentencing in Arkansas is entirely a matter of statute, which requires our court to
review this question of statutory interpretation de novo. Buckley v. State, 349 Ark. 53, 76
S.W.3d 825 (2002); Ward v. State, 97 Ark. App. 294, 248 S.W.3d 489. Adams relies on
1
As an initial point, Adams concedes that his appeal follows a guilty plea, from which
ordinarily no direct appeal may be taken. “However, when the matter appealed is from a
decision which was neither a part of the guilty plea accepted nor part of sentencing, where
sentencing was an integral part of accepting the guilty plea, the appeal is allowed.” Green v.
State, 362 Ark. 459, 463, 209 S.W.3d 388, 341 (2005); see also Hill v. State, 318 Ark. 408, 887
S.W.2d 275 (1994) (appeal from error in sentencing where sentencing hearing was not an
integral part of hearing on the guilty plea).
2
Cite as 2014 Ark. App. 718Arkansas Code Annotated section 5-4-307(c) (Repl. 2006), which provides that “[i]f 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 to run on the
day the defendant is lawfully set at liberty from the imprisonment.” He asserts that, under this
statute, the nine-year periods of SIS began to run on the day he was released from the
Arkansas Department of Correction, or July 7, 2009. Adams pleaded guilty to the revocation
petitions on October 28, 2013. Adams therefore maintains that the time period between July
7, 2009, and October 28, 2013 (four years and three months, or fifty-one months), along
with his original eleven-year sentence of imprisonment, should have been counted against
the original maximum sentences of twenty years for each of his original offenses. Thus, he
concludes that the longest sentence the circuit court could have imposed upon revocation
was fifty-seven months.2
In making this argument, Adams relies on Chadwell v. State, 80 Ark. App. 133, 91
S.W.3d 530 (2002), and Lyons v. State, 35 Ark. App. 29, 813 S.W.2d 262 (1991). In
Chadwell, this court held that where a circuit court imposes a sentence for a specific number
of years, and suspends a portion of it, the sentence has been imposed, and the suspended
portion begins to run when the defendant is released from confinement. Thus, the circuit
court in that case lacked authority to sentence Chadwell to ten years’ incarceration following
revocation of his SIS, when only eight years remained on his suspended sentence. Chadwell,
2
Twenty years (240 months) minus eleven years (132 months) minus 51 months equals
57 months.
3
Cite as 2014 Ark. App. 71880 Ark. App. at 135–36, 91 S.W.3d at 531. Similarly, in Lyons, this court held that the
appellant could not be required, after revocation, to serve more than the remainder of his
original sentence. Lyons, 35 Ark. App. at 31, 813 S.W.2d at 263.
Adams’s reliance upon Chadwell and Lyon is misplaced. In both of those cases, the
defendants were convicted prior to the enactment of Act 1569 of 1999, which amended
Arkansas Code Annotated section 5-4-301. Prior to Act 1569, supreme court case law stood
for the proposition that a trial court lost jurisdiction to modify or amend an original sentence
once that sentence was put into execution. See Moseley v. State, 349 Ark. 589, 80 S.W.3d 325(2002); Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001). Act 1569, however, specifically
authorized trial courts to modify original court orders and even add penalties to those orders
up to the statutory limits. See Walden v. State, 2014 Ark. 193, 433 S.W.3d 864. 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. Id. Following the amendment,
section 5-4-301(d)(2) (Repl. 2006) provides that the “entry of a judgment of conviction does
not preclude . . . [t]he 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 § 16-93-307.”
Moreover, pursuant to Arkansas Code Annotated section 5-4-309(f)(1)(A) (Repl.
2006),3 “[i]f a court revokes a suspension or probation, the court may enter a judgment of
3
Section 5-4-309 was repealed by Act 570 of 2011 and recodified at Arkansas Code
Annotated section 16-93-308 (Supp. 2013).
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Cite as 2014 Ark. App. 718conviction and may impose any sentence on the defendant that might have been imposed originally
for the offense of which he or she was found guilty.” (Emphasis added.) Thus, a circuit court
is authorized, following revocation, to modify the original order and impose any sentence
that appellant originally could have been given. Maldonado v. State, 2009 Ark. 432; Whitson
v. State, 2014 Ark. App. 283.
In the present case, Adams pleaded guilty to Class B, C, and D felony offenses. The
criminal informations in those cases alleged that he was a habitual offender, having been
previously convicted of four or more felonies. Thus, at the time of his guilty pleas, he faced
maximum sentences of forty years for the B felony, thirty years for the C felonies, and fifteen
years for the D felony. See Ark. Code Ann. § 5-4-501(b)(2) (Repl. 2006). The nine-year
sentence imposed by the circuit court following revocation was, therefore, lawfully within
the range of sentences that Adams originally could have been given. Accordingly, the circuit
court did not impose an illegal sentence on Adams.
Affirmed.
GLADWIN , C.J., and HIXSON , J., agree.
Cheryl Barnard, Deputy Public Defender, by: Clint Miller, Deputy Public Defender, for
appellant.
Dustin McDaniel, Att’y Gen., by: Laura Shue, Ass’t Att’y Gen., for appellee.
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