Buckley v. State

• Decision Date: 30 May 2002
• Docket Number: No. CR 01-644.,CR 01-644.
• Citation: 76 S.W.3d 825,349 Ark. 53
• Parties: Gyronne BUCKLEY v. STATE of Arkansas.
• Court: Arkansas Supreme Court

76 S.W.3d 825

349 Ark. 53

Gyronne BUCKLEY v. STATE of Arkansas.

No. CR 01-644.

Supreme Court of Arkansas.

May 30, 2002.

Hampton & Larkowski, by: Mark F. Hampton and J. Thomas Sullivan, Little Rock, for appellant.

Mark Pryor, Att'y Gen., by: David R. Raupp, Sr. Ass't Att'y Gen., Little Rock, for appellee.

TOM GLAZE, Justice.

Gyronne Buckley was convicted in 1999 of two counts of delivery of a controlled substance and was sentenced to two life sentences. He appealed his convictions to this court, and we reversed and remanded for resentencing. See Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000). Prior to the resentencing trial, Buckley filed a motion with the trial court in which he attempted to waive a jury for sentencing. He asked the trial court to give him the minimum sentence available under the sentencing grid, and he claimed that he would be prejudiced because the same jury that found him guilty would not hear the testimony offered in the resentencing trial. Particularly, Buckley noted that the testimony and credibility of Keith Ray, a Drug Task Force officer on whose testimony the State had relied heavily at the first trial, had been discredited in an unrelated federal habeas corpus proceeding. The State refused to agree to waive jury sentencing, and the trial court denied the motion on the ground that the State has a right to a jury trial. The court also ruled that either party could call Ray as a witness.

The sentencing trial then began, and at the conclusion of the trial, the jury sentenced Buckley to twenty-eight years on each conviction. The trial court ordered that the sentences run consecutively. On appeal, Buckley argues that the trial court erred in finding that the State had a right to a jury trial on resentencing and in denying his motion to waive resentencing by a new jury. He also raises eight points that he concedes were not preserved for review by a contemporaneous objection, but asserts that this court should consider them anyway under a plain-error review.

The first question presented in this appeal requires this court to conduct an analysis of the Arkansas bifurcated-sentencing statute, Ark.Code Ann. § 16-97-101 et seq. (Supp.2001). This court reviews questions of statutory interpretation de novo because it is our responsibility to determine what a statute means. R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 (2001); Stephens v. Arkansas School for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999)).

Since 1993, Arkansas law has provided for a bifurcated-sentencing procedure, with guilt and sentence being determined by a jury at separate phases. Arkansas Code Annotated § 16-97-101 (Supp.2001) governs this procedure, and the statute provides, in relevant part, as follows:

The following procedure shall govern jury trials which include any felony charges:

(1) The jury shall first hear all evidence relevant to every charge on which a defendant is being tried and shall retire to reach a verdict on each charge.

(2) If the defendant is found guilty of one (1) or more charges, the jury shall then hear additional evidence relevant to sentencing on those charges. Evidence introduced in the guilt phase may be considered, but need not be reintroduced at the sentencing phase.

(3) Following the introduction of additional evidence relevant to sentencing, if any, instruction on the law, and argument, the jury shall again retire and determine a sentence within the statutory range.

* * *

(5) After a jury finds guilt, the defendant, with the agreement of the prosecution and the consent of the court, may waive jury sentencing, in which case the court shall impose sentence.

(Emphasis added.) Further, Ark.Code Ann. § 5-4-103(a) (Repl.1997) provides that "[i]f a defendant is charged with a felony and is found guilty of an offense by a jury, the jury shall fix punishment in a separate proceeding as authorized by this chapter." (Emphasis added.)

This court has recognized that under the bifurcation structure, a criminal trial is split into separate and distinct stages, the first of which involves the finding of guilt or innocence. Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995); Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). In the event of a finding of guilt, further proceedings are held in which evidence may be presented prior to the setting of sentence. Hill v. State, supra. Specifically, the court in Hill wrote that "the legislature has provided ... for separate and distinct procedures governing jury trials and sentencing by jury," and that "sentencing is now, in essence, a trial in and of itself, in which new evidence may be submitted." Hill, 318 Ark. at 413, 887 S.W.2d 275 (emphasis added).

In this appeal, Buckley raises several arguments to support his claim that there was no authority for him to be resentenced by a jury. First, he contends that Arkansas case law holds that resentencing before a jury that does not consider an accused's guilt is inappropriate because of the potential for prejudice in the sentencing decision, due to the jurors' inability to consider the credibility of all evidence leading to conviction on the underlying charge. In support of this assertion, he cites Jones v. Arkansas, 929 F.2d 375 (8th Cir.1991), where the Eighth Circuit Court of Appeals pointed out in a footnote that "[u]nder Arkansas law, it appears that a new jury generally cannot be empaneled solely on the issue of sentencing." Jones, 929 F.2d at 381, n. 17 (citing Mathis v. State, 267 Ark. 904, 591 S.W.2d 679 (Ark.App.1980) (overruled on other grounds by Rogers v. State, 10 Ark.App. 19, 660 S.W.2d 949 (1983)).

However, Jones was decided prior to the enactment of the bifurcated sentencing statute, § 16-97-101. Sentencing in Arkansas is, of course, entirely a matter of statute. See, e. g., Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001); State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993). Therefore, because the sentencing statute has changed since the cases Buckley relies on were rendered, the holdings of those cases do not help him.

Second, Buckley asserts that, although the General Assembly explicitly authorized resentencing by a newly empaneled jury in capital cases, see Ark.Code Ann. § 5-4-616 (Repl.1997),¹ there is no such explicit authorization for new juries in noncapital cases. In addition, he contends that § 5-4-103 does not contemplate jury sentencing upon a guilty plea. Because there is no language authorizing remand for resentencing before a new jury not hearing the guilt issue in noncapital cases, he argues, it was error for the trial court to empanel a new jury to hear his sentencing case.

However, this argument ignores the fact that § 16-97-101(6) clearly contemplates jury sentencing after a plea of guilty. In such a situation, the jury empaneled for the purpose of sentencing would not have heard the evidence relating to the guilt issue in the first instance either, but it is still permitted to decide sentencing. Thus, by analogy, if a jury can decide a sentence after a defendant has pled guilty, but that jury has heard no evidence other than the fact that the defendant had already been convicted, then a jury should be permitted to decide a sentence in a case where a defendant's conviction has been affirmed, but only the sentence reversed. The question of guilt, as in a guilty plea, has already been decided; it remains only for the jury to determine a just sentence.

Further, as there is no hindrance to the impaneling of a jury to determine a sentence on remand, then there is no infirmity in the State's refusal to assent to a defendant's attempted waiver of a jury. In State v. Vasquez-Aerreola, 327 Ark. 617, 940 S.W.2d 451 (1997), this court held that, under Ark. R.Crim. P. 31.1, criminal cases that require a trial by jury must be so tried unless: (1) waived by the defendant; (2) assented to by the prosecutor; and (3) approved by the court. Given the language of this rule, a trial court has no authority to accept a defendant's guilty plea unless the State assents to it. See also State v. Singleton, 340 Ark. 710, 13 S.W.3d 584 (2000); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986) (expressly declining to follow jurisdictions that afford criminal defendants an absolute right to waive a jury trial).

Indeed, § 16-97-101(5) states that "[a]fter a jury finds guilt, the defendant, with the agreement of the prosecution and the consent of the court, may waive jury sentencing, in which case the court shall impose sentence." (Emphasis added.) Thus, it is clear that in sentencing, as in trial, a defendant can waive a jury only with the agreement of the State. Here, because the State declined to consent to Buckley's request to waive a jury for his resentencing, the trial court did not err in submitting the matter to a jury.

These arguments aside, Buckley's convictions should be affirmed because he has not demonstrated how he was prejudiced by having a different jury sentence him. Although he claims that he was prejudiced because the sentencing jury was not afforded an opportunity to evaluate the credibility of Keith Ray, who testified at Buckley's first trial, Buckley did not call Ray to impeach Ray's testimony at Buckley's sentencing hearing, despite the fact that the trial court specifically noted that both sides would be permitted to call Ray as a witness. If any prejudice arises from this situation, it is of Buckley's own making.

Additionally, Buckley cannot demonstrate that he was prejudiced by being resentenced by a new jury, because he received a sentence within the statutory range, and one that was significantly less than his original sentence.² Delivery of a controlled substance is a Class Y felony, see Ark.Code Ann. § 5-64-401(a)(1)(i) (Repl.1997), which carries a sentencing range of ten-to-forty years or life. Ark. Code Ann. § 5-4-401(a)(1) (Repl.1997). A defendant who has received a sentence within the...