Bunch v. State

• Decision Date: 10 May 2001
• Docket Number: No. CR 00-1360.,CR 00-1360.
• Parties: Rodney BUNCH v. STATE of Arkansas.
• Court: Arkansas Supreme Court

43 S.W.3d 132

344 Ark. 730

Rodney BUNCH v. STATE of Arkansas.

No. CR 00-1360.

Supreme Court of Arkansas.

May 10, 2001.

COPYRIGHT MATERIAL OMITTED

James R. Wallace & Associates, by Tammy L. Harris, Little Rock, for appellant.

Mark Pryor, Att'y Gen., by Vada Berger, Ass't Att'y Gen., Little Rock, for appellee.

JIM HANNAH, Justice.

This appeal arises from Appellant Rodney Bunch's conviction for aggravated robbery and theft of property. Bunch was convicted as an habitual offender, and sentenced to life in prison under the enhanced sentencing statute. He raises one point on appeal, arguing that the sentencing enhancement provision in Ark.Code Ann. § 5-4-501(d) (Repl.1997) is unconstitutional as applied to him. We affirm.

Facts

On July 19, 1998, Stephanie Springer Transue returned home at about 11:00 p.m. from a business trip and, as she was unlocking her front door, was attacked by a black male whom she had seen moments before across the parking lot at her condominium complex. According to Transue's testimony, the man was carrying some type of weapon, either a knife or a gun, and he pushed her down and demanded her purse and car keys. However, the man ran away when the alarm at Transue's apartment went off. Transue's neighbors called the police, and Transue was able to recover her purse and car keys from the parking lot. She subsequently gave a statement to the police that night, and described her attacker with some detail. She indicated that she got a very good look at her attacker.

On August 6, 1998, Transue identified Bunch from a photo lineup shown to her by Detective Charles Ray of the Little Rock Police Department. According to Transue's and Ray's testimony, it only took three seconds for Transue to identify Bunch as her attacker. Bunch was subsequently charged by felony information on October 6, 1998, on two counts including aggravated robbery, a felony, and theft of property under $500, a misdemeanor. The first trial in this matter occurred on March 4, 1999, and ended in a mistrial due to a hung jury.

The State chose to retry Bunch, and on March 14, 2000, the prosecutor amended the felony information to include a charge that Bunch is an habitual offender because he was convicted on February 4, 2000, of two counts of aggravated robbery and one count of misdemeanor theft of property in an unrelated matter. He was sentenced to 120 months each on the aggravated-robbery counts.

Bunch's attorney filed a motion to declare Ark.Code Ann. § 5-4-501(d) unconstitutional as applied to Bunch. The court denied this motion at a pretrial hearing on April 10, 2000.

Trial was held on April 25, 2000, and the prosecution first presented Transue and Ray who testified about the attack and Transue's identification of Bunch in the photo lineup. Pulaski County Deputy Sheriff Sylvester Nelson testified that after a pretrial hearing on January 4, 1999, Bunch, who was in Nelson's custody, fled from Nelson at the courthouse and was apprehended several blocks from the courthouse. Following the State's case, the defense made the requisite directed-verdict motions, which were denied.

The defense then presented its case. Little Rock Police Officer John Witt testified that he was the first to respond to Transue's call after the attack, and that Transue gave him a description of what her attacker looked like and what he was wearing. Little Rock Police Officer John Bracey testified that at 11:40 p.m. on the night of Transue's attack, he stopped Bunch as he was driving and gave him a traffic ticket. Bracey testified that he patted down Bunch, and that Bunch had no weapons, money, credit cards, or a purse on him or in view in the car. He testified that Bunch had some women with him in the car. Bracey further testified that he had driven the route from Transue's apartment complex to where he pulled Bunch over, and that the entire route took approximately ten minutes in noonday traffic. Little Rock Police Officer Todd Armstrong testified that he arrested Bunch on August 6, 1998, for robbery, and at the time, Bunch had a tattoo on his left arm. Armstrong testified on cross-examination that Bunch fled when Armstrong tried to pull him over, and that a car chase ensued until he was apprehended. The photo taken of Bunch after his arrest was the same photo used in the photo lineup shown to Transue.

After the defense rested, defense counsel renewed all motions and objections, including the motion challenging the constitutionality of Ark.Code Ann. § 5-4-501(d) as it applies to Bunch. The trial court again denied the motions. After receiving instructions, the jury retired for approximately one hour, then returned with a unanimous guilty verdict on the charges of aggravated robbery and theft of property. Because the State indicated that it would proceed under the "three strike" provision of the sentencing statutes based on Bunch's prior conviction on two counts of aggravated robbery, the trial court indicated that it would announce to the jury that there was a mandatory life sentence. The defense objected, renewing its motion as to the constitutionality of that provision, arguing that the two previous convictions arose from the same occurrence. However, the court overruled the objection and announced to the jury that it was sentencing Bunch to a life sentence. On May 16, 2000, Bunch moved for a new trial and the hearing was held on this motion on May 22, 2000. The defense again challenged the constitutionality of Ark.Code Ann. § 5-4-501(d) as it applied to Bunch, but the trial court denied that motion again. Bunch filed his notice of appeal on June 12, 2000.

Bunch does not challenge the sufficiency of the evidence, but argues on appeal that the trial court erred in sentencing him to life in prison because the trial court did not follow the sentencing procedures laid out in Ark.Code Ann. § 5-4-502 (Repl. 1997), which contemplates a sentencing range for the jury to consider and apply. He argues this violates his equal protection and due process rights because it removes from the jury the discretion to apply a punishment within the contemplated "range." Furthermore, Bunch argues that this error also violates the Eighth Amendment to the United States Constitution and Article 2, § 9, of the Arkansas Constitution prohibiting cruel and unusual punishment. Finally, Bunch argues that the mandatory life sentence for an habitual offender who falls within the provisions of Ark.Code Ann. § 5-4-501(d) violates the Separation of Powers Doctrine in the United States and Arkansas Constitutions because it allows the legislature instead of the jury to pass the sentence on a defendant.

Standard of Review

Statutes are presumed constitutional, and the burden of proving otherwise is on the challenger of the statute. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999); ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997). If it is possible to construe a statute as constitutional, we must do so. Jones v. State, 333 Ark. 208, 969 S.W.2d 618 (1998). In construing a statute, we will presume that the General Assembly, in enacting it, possessed the full knowledge of the constitutional scope of its powers, full knowledge of prior legislation on the same subject, and full knowledge of judicial decisions under preexisting law. McLeod v. Santa Fe Trail Transp. Co., 205 Ark. 225, 168 S.W.2d 413 (1943). We must also give effect to the legislature's intent, making use of common sense and giving words their usual and ordinary meaning. Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993).

A. Do Ark.Code Ann. §§ 5-4-501(d)(1)(A) and 5-4-501(d)(3)(A)(3) and (4) Conflict and Violate Bunch's Due Process and Equal Protection Rights?

As a first issue, Bunch argues that these statutes conflict in that the first, Ark.Code Ann. § 5-4-501(d)(1)(A), requires that a defendant be sentenced to life in prison while the second, Ark.Code Ann. § 5-4-501(d)(3)(A)(3) and (4), requires that a jury sentence him within the statutory range for the crime. As such, failure to allow the jury to sentence him within that statutory range is a violation of due process and equal protection. Ark.Code Ann. § 5-4-501(d)(1)(A) states:

(d)(1) A defendant who is convicted of a felony involving violence enumerated in subdivision (d)(2) of this section and who has previously been convicted of two (2) or more of the felonies involving violence enumerated in subdivision (d)(2) of this section shall be sentenced to an extended term of imprisonment, without eligibility except under § 16-93-1302 for parole or community punishment transfer, as follows:

(A) For a conviction of a Class Y felony, a term of not less than life in prison;...¹

Ark.Code Ann. § 5-4-501(d)(3)(A)(3) and (4), however, indicate that the procedure governing sentencing requires the trial court to do the following:

(3) The trial court shall then instruct the jury as to the number of previous convictions involving violence and the statutory sentencing range. The jury may be advised as to the nature of the previous convictions and the date and place thereof.

(4) The jury shall retire again and then determine a sentence within the statutory range.

Clearly, the first statutory provision dictates that a life sentence be imposed while the second provision indicates that the jury must determine a sentence "within the statutory range."

Bunch's argument is premised on the idea that Ark.Code Ann. § 5-4-501(d), which requires a mandatory life sentence in certain instances, and Ark.Code Ann. § 5-4-103(a), which allows the jury to impose a sentence within a statutory range, are at odds. While Ark.Code Ann. §§ 5-4-501(d)(1)(A) and 5-4-501(d)(3)(A)(3) and (4) would seem to be inconsistent, our case law detailing sentencing clarifies the seeming discrepancy. This court has basically decided this issue in Ricks v. State, 327 Ark. 513, 940 S.W.2d 422 (1997), where the court found that Ark.Code Ann. § 5-4-501 (Supp.1995) requiring a life sentence did not...