Barnett v. State, CACR07-333 (Ark. App. 11/28/2007)

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Jerry Douglas BARNETT, Appellant v. STATE of Arkansas, Appellee

CACR07-333

Court of Appeals of Arkansas

Division III

Opinion Delivered November 28, 2007

An Appeal from Union County Circuit Court, [CR2005-452-1], Hon. Hamilton H. Singleton, Judge

Affirmed

WENDELL L. GRIFFEN, Judge.

On August 15, 2006, a Union County jury found Jerry Douglas Barnett guilty of various crimes, for which he was sentenced to a total of twenty years imprisonment in the Arkansas Department of Correction. Appellant does not challenge the convictions. Rather, he asserts that the trial court erred in allowing the State to present evidence of a 1992 guilty plea and probation sentence in light of evidence that the court dismissed him from probation five years later. He acknowledges the decision in McClish v. State, 331 Ark. 295, 962 S.W.2d 332 (1998), which allows the State to present evidence of an expunged conviction, but he urges us to reconsider that case. We are without the power to overrule supreme court precedent; therefore, we affirm.

Appellant was convicted of four felonies: residential burglary, Ark. Code Ann. § 5-39-201(a) (Repl. 2006); theft of property over $500, Ark. Code Ann. § 5-36-103(b)(2) (Repl. 2006); possession of methamphetamine, Ark. Code Ann. § 5-64-401(c)(2)(A) (Repl. 2005); and possession of drug paraphernalia, Ark. Code Ann. § 5-64-403(c) (Repl. 2005). The State alleged habitual-offender status under Ark. Code Ann. § 5-4-501(a) (Repl. 2006), which enhances penalties for persons previously convicted of more than one but fewer than four felonies.

To prove appellant's habitual-offender status, the State introduced a certified copy of a guilty plea to conspiracy to delivery of a controlled substance (LSD), dated March 9, 1992, for which appellant received a five-year term of probation.¹ Appellant objected to the entry of the guilty plea and proffered an April 28, 1997, order, which terminated his probation, discharged and dismissed the charges against him, and allowed him to seek to have his criminal record sealed. The court allowed the State to introduce the 1992 guilty plea over appellant's objection. The jury later recommended sentences of five years for the residential burglary and five years for the theft of property. As the jury was unable to affix sentences on the drug charges, the court sentenced appellant to ten years on the charge of possession of methamphetamine and five years on the charge of possession of drug paraphernalia. The court ordered the sentences for residential burglary and theft to be run concurrently; otherwise, the sentences were consecutive, for a total of twenty years in the Arkansas Department of Correction.

Appellant's sole contention on appeal involves the admissibility of the 1992 guilty plea. Appellant...