Brown v. State

• Decision Date: 10 March 2004
• Docket Number: No. CA CR 03-133.,CA CR 03-133.
• Citation: 155 S.W.3d 22,85 Ark. App. 382
• Parties: Gaylon Jean BROWN v. STATE of Arkansas.
• Court: Arkansas Court of Appeals

155 S.W.3d 22

85 Ark. App. 382

Gaylon Jean BROWN v. STATE of Arkansas.

No. CA CR 03-133.

Court of Appeals of Arkansas, Division I.

March 10, 2004.

William R. Simpson, Jr., Public Defender, by: Erin Vinett, Deputy Public Defender, for appellant.

Mike Beebe, Att'y Gen., by: Clayton K. Hodges, Ass't Att'y Gen., for appellee.

ANDREE LAYTON ROAF, Judge.

Gaylon Jean Brown was convicted of fraudulent use of a credit card and robbery in two consecutive bench trials and was sentenced to twenty years' imprisonment for each conviction. Following the bench trials, the trial court also revoked her probation and sentenced her to six years' imprisonment. All three sentences were to be served concurrently. Brown now appeals, asserting two points of error. Brown argues that the trial court erred (1) by imposing an illegal sentence in the fraudulent use of a credit card conviction, and (2) in admitting hearsay testimony at her robbery trial. With respect to the probation revocation, Brown's counsel has filed a motion to withdraw, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that there is no meritorious argument on appeal. We affirm Brown's two convictions and revocation of probation, and based upon our review of the record, we grant her counsel's motion to withdraw.

Because Brown does not challenge the sufficiency of the evidence supporting her conviction for fraudulent use of a credit card, a long recitation of the facts is not necessary. On April 18, 2002, Suzanne Woodard went to the Colony West Conoco where Brown was an employee. Woodard made a purchase using her Pulaski Bank debit card and left the store without getting her card back. The store's surveillance tape showed Brown slide the debit card toward her as Woodard exited the store, and it showed her holding the debit card and looking at it after Woodard left. The store's manager testified that during the same time frame the surveillance cameras showed Brown with possession of the card, he recovered sales transactions for two cartons of cigarettes and other small items. There were five unauthorized transactions in all, $3.19, $8.51, $37.84, $44.62, and $73.34, totaling $167.83. The trial court found Brown guilty of fraudulent use of a credit card. Before sentencing, the State submitted evidence of Brown's previous four felony convictions. After hearing this evidence, the court sentenced Brown to twenty years in the Arkansas Department of Correction.

Brown argues that her sentence is facially illegal because the sentencing guidelines recommend 42 months, which corresponds to three and one-half years; however, the trial court sentenced her to twenty years. This sentence is more than five times the presumed sentence. Brown asserts that in order to depart from the sentencing grid, the trial court must state, in writing, its reasons for doing so. There is no departure report in the record, and Brown did not request one from the lower court. The State contends that Brown's challenge is procedurally barred because she failed to raise it to the trial court. However, Brown argues that her sentence is illegal on its face and that she may challenge an illegal sentence for the first time on appeal.

The fact that an appellant does not object to an illegal sentence does not bar a challenge on appeal because Arkansas appellate courts treat allegations of void or illegal sentences much like jurisdictional questions, which can be raised for the first time on appeal. Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992). Thus, we must determine whether Brown's sentence is actually an illegal one.

A sentence is void or illegal when the trial court lacks the authority to impose it. Sentencing in Arkansas is entirely a matter of statute ... We have consistently held that sentencing shall not be other than in accordance with the statute in effect at the time of the commission of a crime. Where the law does not authorize the particular sentence pronounce by the trial court, that sentence is unauthorized and illegal, and the case must be reversed and remanded.

State v. Fountain, 350 Ark. 437, 440, 88 S.W.3d 411, 413 (2002) (citations omitted).

Arkansas Code Annotated section 5-37-207 defines the crime of fraudulent use of a credit card and provides that it is a Class C felony if the value of the goods or services obtained exceeds one hundred dollars. Ark.Code Ann. § 5-37-207(b)(1) (Supp.2003). Sentencing for a Class C felony shall be not less than three years nor more than ten years. Ark.Code Ann. § 5-4-401 (Repl.1997). However, pursuant to Ark.Code Ann. § 5-4-501 (Supp 2003) the sentence for Class C felonies imposed upon a defendant who has been previously convicted of four or more felonies is not less than 3 years nor more than 30 years. Ark.Code Ann. § 5-4-501(b)(2)(D) (Supp.2003).

Arkansas Code Annotated section 16-90-803 provides, "When a person charged with a felony ... is found guilty in a trial before the judge ... sentencing shall follow the procedures provided in this chapter." Ark.Code Ann. § 16-90-803(a)(1)(A) (Supp.2001). "The presumptive sentence shall be determined, but may be departed from pursuant to the procedures outlined in § 16-90-804." Ark.Code Ann. § 16-90-803(a)(2)(A) (Supp.2001). However, "[t]he statutory minimum or maximum ranges for a particular crime shall govern over a presumptive sentence if the presumptive sentence should fall below or above such ranges." Ark.Code Ann. § 16-90-803(b)(3)(C) (Supp. 2001).

In this case, Brown's sentence is not illegal on its face. An illegal sentence is one that the trial court is not authorized to impose. Here, although Brown was given a sentence greater than the presumed one, her sentence was authorized pursuant to our statute governing sentencing for habitual offenders. Ark.Code Ann. § 5-4-501 (Rep.1997). While Ark.Code Ann. § 16-90-803 establishes a presumed sentence, "[t]he statutory minimum or maximum ranges for a particular crime shall govern over a presumptive sentence if the presumptive sentence should fall below or above such ranges." Ark.Code Ann. § 16-90-803(b)(3)(C) (Supp.2001). In this case, the statutory range for a habitual offender with four or more felony convictions who is convicted of a Class C felony is between three and thirty years. Brown's twenty year sentence falls squarely within this range, and therefore, the trial court was authorized to impose it.

Moreover, the mere fact that the trial court failed to provide written justification does not render the sentence illegal on its face. The Arkansas Code mandates that the trial court present a written justification for any sentence imposed that is 5% more than the presumed amount. The statute, however, prescribes the remedy when the trial court has failed to do so. Arkansas Code Annotated section 16-90-804(c)(1) (Supp.2001) provides that when the trial court imposes a sentence that is outside the presumptive range, and is not accompanied by written justification, then the defendant is entitled to "consideration for any discretionary release applicable under the law as if he had received the presumptive sentence, and the transfer or releasing authority may review, grant, or deny transfer or release based on any eligibility established by the presumptive sentence term." Ark.Code Ann. § 16-90-804(c)(1) (Supp.2001) (emphasis added). Brown's remedy lies within the statute, and her sentence is affirmed.

Brown was also convicted of robbing her wheelchair-confined neighbor. Again, Brown does not challenge the sufficiency of the evidence, and an extensive recitation of the facts is not necessary. She challenges only the admissibility of hearsay testimony during her trial. The victim, Ollie Pace, testified that Brown had come over to his trailer to use the phone. While she was there a repairman came to repair the washing machine. When the repair was complete, Brown observed Pace pay the repairman and return his wallet to his front pocket. Brown left shortly after the repairman. A few minutes later, Brown returned wearing a hat and a black coat, put a bag over Pace's head, and removed the cash from his wallet. Pace testified that although Brown was wearing a hat, he recognized her and the lime-green pants she was still wearing. A "little while" later, Pace said, his granddaughter came over and, he told her about the incident.

Shantarius Pace testified that when she arrived at her grandfather's home, he was crying and upset. She agreed that he was visibly shaken and "his nerves [were] just bad." While in this condition, he told Shantarius that Brown robbed him. At this point in the testimony, defense counsel raised a hearsay objection. The trial court overruled the objection, and Shantarius concluded by restating the events as told to her by Pace.

"`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ark. R. Evid. 801(c) (2003). Hearsay testimony is generally inadmissible. Ark. R. Evid. 802 (2003). There are some exceptions; the most applicable to the facts of this case being the excited utterance exception. Ark. R. Evid. 803(2) (2003). The rules of evidence provide, "A statement relating to a startling event or condition made while the declarant was under the stress of excitement cause by the event or condition" is not excluded by the hearsay rule. Ark. R. Evid. 803(2) (2003). Admissibility of evidence is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Peterson v. State, 349 Ark. 195, 76 S.W.3d 845 (2002).

Brown argues that while there was testimony that Pace was in a startled condition, there was insufficient foundation laid with respect to the passage of time. She argues the trial court abused its discretion in allowing the hearsay testimony without a proper foundation for doing so, and without pausing the proceedings long...