State v. Colvin

2013 Ark. 203

427 S.W.3d 635

STATE of Arkansas, Appellant

v.Telecia COLVIN, Appellee.

No. CR 12–739.

Supreme Court of Arkansas.

May 16, 2013.

William R. Simpson, Jr., Public Defender; by: Clint Miller, Deputy Public Defender, for appellant.

Dustin McDaniel, Att'y Gen., by: Rachel Kemp, Ass't Att'y Gen., for appellee.

COURTNEY HUDSON GOODSON, Justice.

The State of Arkansas brings this appeal from a sentencing order entered by the Pulaski County Circuit Court upon finding appellee Telecia Colvin guilty of aggravated assault on a family or household member along with an enhancement for committing the offense in the presence of a child. For reversal, the State contends that the circuit court imposed an illegal sentence by suspending the sentence for the enhancement. We find merit in the appeal and reverse and remand for resentencing.

As a threshold matter, we must determine whether the State may appeal the sentencing order. Unlike the right of a criminal defendant to bring an appeal, the State's right to appeal is limited to the provisions of Rule 3 of the Arkansas Rules of Appellate Procedure–Criminal. State v. Richardson, 373 Ark. 1, 280 S.W.3d 20 (2008). Under this rule, we accept appeals by the State when our holding would be important to the correct and uniform administration of Arkansas criminal law. State v. Hardiman, 353 Ark. 125, 114 S.W.3d 164 (2003). We have previously held that “sentencing and the manner in which such punishment provisions can be imposed arise in every criminal case where a conviction is obtained, and the application of these statutory sentencing procedures to convict defendants requires uniformity and consistency.” State v. Stephenson, 340 Ark. 229, 231, 9 S.W.3d 495, 496 (2000) (quoting State v. Freeman, 312 Ark. 34, 35–36, 846 S.W.2d 660, 660 (1993)). An erroneous application of the sentencing statutes, which the State alleges in this case, affects the correct and uniform administration of justice. State v. Pinell, 353 Ark. 129, 114 S.W.3d 175 (2003). Likewise, it is well settled that the State may appeal the imposition of a void or illegal sentence by the trial court. Hardiman, supra;State v. Rodriques, 319 Ark. 366, 891 S.W.2d 63 (1995); State v. Kinard, 319 Ark. 360, 891 S.W.2d 378 (1995); State v. Brummett, 318 Ark. 220, 885 S.W.2d 8 (1994). Therefore, jurisdiction of this appeal is properly in this court.

The pertinent facts of this case are not in dispute. The prosecuting attorney in Pulaski County charged Colvin with aggravated assault on a family or household member, a violation of Arkansas Code Annotated section 5–26–306 (Repl.2006). The information also included the allegation that any sentence she might receive for that offense was subject to enhancement, pursuant to Arkansas Code Annotated section 5–4–702 (Supp.2011), for committing the offense in the presence of a child. The testimony adduced at the ensuing bench trial reveals that Colvin crashed her vehicle into the back and also the driver's side of the car driven by Robert Redmon, the father of Colvin's infant daughter. Redmon was not injured, but his car sustained damage. Testimony also reflects that the child was riding in the vehicle with Colvin when the incident occurred. Based on this evidence, the circuit court found Colvin guilty of aggravated assault on a household member. The court also determined that a child was present during the commission of the offense. For the assault, the circuit court suspended imposition of sentence for a period of five years, ordered Colvin to spend twenty days in the county jail, imposed a fine of $1,000 plus court costs, and ordered Colvin to pay restitution in the amount of $2,300. Over the State's objection, the court sentenced her on the enhancement to “one year consecutive, suspended.” The State now appeals, arguing that section 5–4–702 mandates the imposition of a term of imprisonment for the enhancement and that the circuit court lacked the authority to suspend the sentence. In response, Colvin argues that the sentencing provisions of section 5–4–702 are not mandatory and that neither Arkansas Code Annotated section 5–4–104 (Supp.2011), nor section 5–4–301 (Supp.2011), which both address alternative sentencing, prohibits the suspension of the enhanced sentence.

In Arkansas, sentencing is entirely a matter of statute. Donaldson v. State, 370 Ark. 3, 257 S.W.3d 74 (2007). Arkansas Code Annotated section 5–4–104(a) states that “[n]o defendant convicted of an offense shall be sentenced otherwise than in accordance with this chapter.” White v. State, 2012 Ark. 221, 408 S.W.3d 720. Where the law does not authorize the particular sentence pronounced by a trial court, that sentence is unauthorized and illegal, and the case must be reversed and remanded. State v. Fountain, 350 Ark. 437, 88 S.W.3d 411 (2002).

Section 5–4–702(a) provides that persons who commit certain offenses, including assault on a family or household member, “may be subject to an enhanced sentence of an additional term of imprisonment of not less than one (1) year and not greater than ten (10) years if the offense is committed in the presence of a child.” Further, the statute provides that “[t]he enhanced portion of the sentence is consecutive to any other sentence imposed” and that the “person convicted under this subsection is not eligible for early release on parole or community correction transfer for the enhanced portion of the sentence.” Ark.Code Ann. § 5–4–702(d) & (e).

Also relevant here are sections 5–4–104 and 5–4–301. These statutes prohibit probation and the suspended imposition of sentence for the offenses of capital murder, treason, driving while intoxicated, second-degree murder, engaging in a criminal enterprise, and class Y felonies.¹Ark.Code Ann. § 5–4–104(e)(1)(A); Ark.Code Ann. § 5–4–301(a)(1). In addition, a person previously convicted of two or more felonies is not eligible for suspended imposition of sentence or probation. Ark.Code Ann. § 5–4–301(a)(2)(A) & (B). “In any other case, the court may suspend imposition of sentence or place the defendant on probation ... except as otherwise specifically prohibited by statute.” Ark.Code Ann. § 5–4–104(e)(1)(B)(i). Consistent with the italicized portion of section 5–4–104(e)(1)(B)(i), this court in Lovell v. State, 283 Ark. 425, 681 S.W.2d 395 (1984) (supplemental opinion on denial of rehearing), construed the sentencing provisions specifically contained within the Omnibus DWI Act as mandating a term of imprisonment that could not be reduced or suspended by a circuit court, even though driving while intoxicated was not at that time expressly included among the offenses for which alternative sentencing was not available.²

Citing Lovell, the State argues that section 5–4–702 also mandates the imposition of a term of imprisonment that cannot be suspended by a circuit court. As additional support for its argument, the State relies on our decision in Sullivan v. State, 366 Ark. 183, 234 S.W.3d 285 (2006). There, the State also sought the enhanced penalty under section 5–4–702 for the commission of an offense in the presence of a child. The jury found that the offense was committed in a child's presence but wrote “no action” on the verdict form in lieu of fixing a sentence. Nevertheless, the circuit court sentenced Sullivan on the enhancement to “one year in the Department of Correction, with one year suspended, consecutive to all other sentences imposed here.” On appeal, Sullivan argued that the statute gives a jury the discretion not to impose a sentence and that the circuit court erred by disregarding the jury's decision not to mete out an enhanced penalty. This court disagreed with Sullivan's interpretation of the statute. We construed the phrase “may be subject to an enhanced sentence” as meaning that the State is given the option of seeking the enhanced sentence but that the jury is not given the option of imposing the enhanced sentence. Thus, we concluded that “[o]nce the jury determines that the defendant has committed a designated felony in the presence of a child, the jury has no option other than imposing a sentence of not less than one year nor more than ten years' imprisonment.” Sullivan, 366 Ark. at 188–89, 234 S.W.3d at 289. Therefore, we held that the circuit court did not err by setting the sentence when the jury failed to do so.

In Sullivan, the State suggested in a footnote of its brief that the suspended sentence on the enhancement was not authorized. However, we expressly declined to address the legality of the sentence because the State had not filed a cross-appeal from the judgment and commitment order. Thus, in Sullivan, we said only that a sentence must be imposed once it is found that the designated offense was committed in the presence of a child. We did not decide whether the circuit court possessed the authority to suspend the sentence.³ Therefore, the issue under consideration in the present case is one of first impression.

Although the enhanced penalty set forth in section 5–4–702 is not mentioned as a sentence that cannot be suspended in either section 5–4–104 or section 5–4–301, our question here is whether section 5–4–702 is a statute where alternative sentencing is “specifically prohibited,” as envisioned by section 5–4–104(e)(1)(B)(i). Our task then is to ascertain whether the General Assembly intended the imposition of the enhanced penalty to be mandatory and not subject to suspension or probation. This court reviews issues involving statutory construction de novo, as it is for this court to decide the meaning of a statute. State v. Britt, 368 Ark. 273, 244 S.W.3d 665 (2006). We also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. Newman v. State, 2011 Ark. 112, 380 S.W.3d 395;State v. Havens, 337 Ark. 161, 987 S.W.2d 686 (1999). Further, penal statutes are to be strictly construed, and all doubts are to be resolved in favor of the...