Cook v. State

• Decision Date: 22 June 1994
• Docket Number: No. CA,CA
• Citation: 46 Ark.App. 169,878 S.W.2d 765
• Parties: Billy Joe COOK, Appellant, v. STATE of Arkansas, Appellee. CR 93-740.
• Court: Arkansas Court of Appeals

Page 765

878 S.W.2d 765

46 Ark.App. 169

Billy Joe COOK, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 93-740.

Court of Appeals of Arkansas En Banc.

June 22, 1994.

Robert P. Remet, Little Rock, for appellant.

Sandy Moll, Asst. Atty. Gen., Little Rock, for appellee.

JENNINGS, Chief Judge.

Appellant, Billy Joe Cook, was charged in Arkansas County Circuit Court with the commission of rape, a class Y felony. After a non-jury trial Cook was found guilty and sentenced by the court to a term of twelve years with eight years suspended. The sole argument on appeal is that the evidence was insufficient to support the verdict. We affirm.

In determining the sufficiency of the evidence, we view it in the light most favorable to the State. Cleveland v. State, 315 Ark. 91, 865 S.W.2d 285 (1993). If the decision of the court or jury is supported by substantial evidence, we will affirm. Paige v. State, 45 Ark.App. 13, 870 S.W.2d 771 (1994). Substantial evidence means such evidence as a reasonable mind might accept as adequate to support a conclusion. Edwards v. State, 40 Ark.App. 114, 842 S.W.2d 459 (1992).

At trial the victim testified, with sufficient clarity, that the appellant had raped her. Although the defendant testified to the contrary, decisions as to the credibility of the witnesses are to be made by the trier of fact. Smith v. State, 314 Ark. 448, 863 S.W.2d 563 (1993). Although there was other corroborating evidence here, the testimony of the victim, standing alone, may constitute substantial evidence. Fox v. State, 314 Ark. 523, 863 S.W.2d 568 (1993). We hold that the appellant's conviction is supported by substantial evidence.

While the State neither appealed nor cross-appealed, it suggests in its brief that we correct an "illegal sentence" imposed by the trial court. The State says:

The trial court sentenced appellant to twelve years in prison, but suspended eight years of the sentence. This sentence is not authorized by law and, although not objected to below, may be raised on appeal. Jones v. State, 27 Ark.App. 24, 765 S.W.2d 15 (1989). The State respectfully requests that the case be remanded to the trial court only to correct this sentence in accordance with law and that the conviction be in all respects affirmed.

The State correctly notes that rape is a class Y felony, carrying a minimum sentence of ten years imprisonment. Ark.Code Ann. § 5-4-401(a)(1) (1987). Arkansas Code Annotated section 5-4-301(a)(1)(C) (Supp.1991) provides that the court shall not suspend imposition of sentence as to a term of imprisonment nor place the defendant on probation for a class Y felony.

While we agree with the State at the outset that the sentence given was below the statutory minimum, and therefore was error, we do not agree that this is an issue the State may raise in the absence of an appeal.

We must begin with the rule that sentencing is entirely a matter of statute. Eberlein v. State, 315 Ark. 591, 869 S.W.2d 12 (1994); State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993); State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993); Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992). The sentence the court imposed was clearly "illegal" in the sense that it was below the statutory minimum. The question for decision, however, is whether we should reverse the trial court, either on our own motion or on suggestion by the State, absent an appeal.

This is not truly an issue of subject matter jurisdiction. As Chief Judge Cracraft explained in Banning v. State, 22 Ark.App. 144, 737 S.W.2d 167 (1987):

The rule of almost universal application is that there is a distinction between want of jurisdiction to adjudicate a matter and a determination of whether the jurisdiction should be exercised. Jurisdiction of the subject matter is power lawfully conferred on a court to adjudge matters concerning the general question in controversy. It is power to act on the general cause of action alleged and to determine whether the particular facts call for the exercise of that power. Subject matter jurisdiction does not depend on a correct exercise of that power in any particular case. If the court errs in its decision or proceeds irregularly within its assigned jurisdiction, the remedy is by appeal or direct action in the erring court. If it was within the court's jurisdiction to act upon the subject matter, that action is binding until reversed or set aside. This distinction has also been recognized and applied in our courts.

In Arkansas, a circuit court has subject matter jurisdiction to hear and determine cases involving violations of criminal statutes. It is also empowered with authority to impose or suspend sentences, and to revoke those suspended sentences. The statutes conferring this authority prescribe the method the court should follow in exercising its assigned jurisdiction, but the failure of the court to properly pursue those statutes is an entirely different matter from its jurisdiction to determine whether to exercise that power or not. Failure to follow the statutory procedure in the exercise of its power constitutes reversible error but does not oust the jurisdiction of the court. [Citations omitted.]

Nevertheless, allegations of "void or illegal sentences" may be treated by the appellate court as similar to problems of subject matter jurisdiction, in that the court will review the allegations even in the absence of an objection in the trial court. Jones v. State, 27 Ark.App. 24, 765 S.W.2d 15 (1989).

The supreme court has said that an illegal sentence may be corrected by the appellate courts sua sponte, see Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994); and that an "illegal sentence" means "a sentence illegal on its face." Lovelace v. State, 301 Ark. 519, 785 S.W.2d 212 (1990). The decision from which these statements are derived is Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986). There the court said:

Abdullah contends that because the manner of imposing the suspended sentence was illegal, it is subject to being corrected at any time, citing Ark.Stat.Ann. § 43-2314 (Supp.1985). That statute provides that a circuit court may, upon receipt of a petition by an aggrieved party, take certain corrective action. The statute refers to an "illegal sentence," which may be corrected at any time, and to a sentence illegally imposed, which may be corrected within 120 days after it was imposed or within 120 days after specified action has been taken by an appellate court. The reference to an illegal sentence evidently means a sentence illegal on its face. [Emphasis ours.]

Arkansas Statute Annotated section 43-2314 is now Ark.Code Ann. § 16-90-111 entitled "Fixing punishment--Correction of illegal sentence--Reduction of sentence." Its text remains unchanged. Subsection (a) provides:

Any circuit court, upon receipt of petition by the aggrieved party for relief and after notice of the relief has been served on the prosecuting attorney, may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided in this section for the reduction of sentence.

It is this statute that the supreme court referred to in Abdullah. The statute quite clearly provides for relief to a defendant when the sentence imposed has been excessive. In such cases, it makes good sense for the appellate court to decide the issue "sua sponte" in the interest of judicial economy, as the sentencing circuit court could do so "at any time." The statute does not contemplate an application by the prosecuting attorney to increase the defendant's sentence "at any time."

We do not view the statute as unfair to the State. At time of sentencing the State presumably knows the range of punishment for the offense it charged. If the trial court sentences the defendant to less than the term authorized by statute, the State has a remedy by way of appeal. State v. Galyean, 315 Ark. 699, 870 S.W.2d 706 (1994); State v. Williams, 315 Ark. 464, 868 S.W.2d 461 (1994); State v. Whale, 314 Ark. 576, 863 S.W.2d 290 (1993); State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993).

Neither Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985), nor Eberlein v. State, 315 Ark. 591, 869 S.W.2d 12 (1994), are in point. Lambert addressed whether the trial court had lost jurisdiction after erroneously suspending the defendant's sentences. While the court in Lambert characterized the issue as one of subject matter jurisdiction, later decisions of the supreme court recognize that this is not so. Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992). The court in Lambert relied in part on In Re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149 (1893). In Bonner the Court said:

If the court is authorized to impose imprisonment, and it exceeds the time prescribed by law, the judgment is void for the excess.

. . . . .

The law of our country takes care, or should take care, that not the weight of a judge's finger shall fall upon any one except as specifically authorized. [Emphasis ours.]

Eberlein is also distinguishable. There the defendant-appellant, for reasons not clear, argued that the trial court lacked authority to suspend his sentence and the supreme court agreed. The issue was raised by the defendant on direct appeal.

The State's argument must be that the inadequate sentence in the case at bar was "unauthorized," therefore "illegal," and thus can be corrected "at any time," not only by the trial court but also by this court. Can it be possible that long after a defendant's release from prison, having served his sentence for a crime, he can be brought back into court and resentenced to an additional term?

While we do not decide whether the State must object in the trial court to a sentence it regards as inadequate, we hold that the issue may not be raised absent an appeal or cross-appeal.

ROGERS and PITTMAN, JJ., concur.

COOPER and ROBBINS, JJ., concur in part; dissent in part.

ROBBINS, Judge, ...