Hill v. State

• Decision Date: 31 October 1994
• Docket Number: No. CR,CR
• Citation: 318 Ark. 408,887 S.W.2d 275
• Parties: Jeffery HILL, Appellant, v. STATE of Arkansas, Appellee. 94-503.
• Court: Arkansas Supreme Court

Page 275

887 S.W.2d 275

318 Ark. 408

Jeffery HILL, Appellant, v. STATE of Arkansas, Appellee.

No. CR 94-503.

Supreme Court of Arkansas.

Oct. 31, 1994.

Daniel D. Becker, Hot Springs, for appellant.

Brad Newman, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

Appellant Jeffery Hill brings this appeal, claiming that the trial court committed error under the bifurcated sentencing procedures established by Acts 535 and 551 of 1993, as codified in Ark.Code Ann. §§ 16-97-101--16-97-104 (Supp.1993).

Hill pleaded guilty to robbery and was sentenced to fifteen years' imprisonment by a jury impaneled for purposes of sentencing. He raises three points for reversal: (1) the trial court erred in allowing the State to elicit testimony that he had made a prior attempt to commit a robbery against the same victim; (2) the trial court erred in instructing the jury with regard to his parole eligibility; and (3) the trial court erred in refusing to instruct the jury with his proffered instruction regarding sentencing policy. Finding no merit in his arguments, we affirm.

Facts

On April 5, 1993, Ruth Ardman reported that while attempting to enter her vehicle, a male knocked her down and grabbed her purse and totebag, which contained approximately $6500 in cash and checks. After witnesses provided a description of his vehicle which had been seen several times in the area in the weeks preceding the incident, and following Ms. Ardman's identification of him in a photographic lineup, the appellant, Jeffery Hill, was arrested and charged with robbery, to which he entered a plea of guilty.

Prior to the impaneling of the jury for purpose of sentencing, Hill objected to the State's anticipated use of evidence that he had previously attempted to rob the same victim, arguing that, although relevant in determining guilt, the evidence was not relevant in fixing sentence. The trial court overruled his objection, and Ms. Ardman testified at trial that approximately three weeks prior to the robbery, Hill had approached her while in her car at one of her employee's residences and demanded money, but that she was able to drive away. Hill admitted that he had been to Ms. Ardman's residence on three occasions in as many weeks and that "he already knew where he was going."

At the close of all the evidence, the trial court instructed the jury on parole eligibility yet refused to give Hill's proffered instruction regarding sentencing policy. The jury sentenced Hill to fifteen years' imprisonment.

Appeals from bifurcated proceedings

In general, there is no right to an appeal from a plea of guilty. Matthews v. State, 305 Ark. 207, 807 S.W.2d 29 (1991); State v. Sherman, 303 Ark. 284, 796 S.W.2d 339 (1990). Arkansas Code Annotated § 16-91-101(c) provides that there shall be no appeal from a plea of guilty, and our corresponding rule, Ark.R.Crim.P. 36.1, provides identical language. One exception is found in Ark.R.Crim.P. 24.3(b), which states:

with the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendre [contendere], reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If a defendant prevails on appeal, he shall be allowed to withdraw his plea.

The Arkansas General Assembly in Act 535 of 1993 codified as Arkansas Code Ann. § 16-97-101, made changes in procedures governing jury trials by providing for separate consideration of guilt and sentencing, commonly referred to as "bifurcated proceedings." 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. In the event of a finding of guilt, further proceedings are held in which evidence may be presented prior to the setting of sentence. In establishing these bifurcated procedures, Section 2 of Act 535, codified as Ark.Code Ann. § 16-97-101(6), specifically provides that in the event of a plea of guilty, the defendant, with the agreement of the prosecution and the consent of the court, may be sentenced by a jury impaneled for the purpose of sentencing only. Thus, it is obvious that this new procedure differs considerably from the prior conduct of trials where the jury assessed both guilt and sentence during one proceeding.

Section 10 of Act 535 provides that all laws in conflict with the Act are repealed, thus repealing Section 16-91- 101(c) which, as previously stated, provided that there shall be no appeals from a plea of guilty. However, a question remains as to whether this new code provision, which provides for sentencing by a jury after a plea of guilty under certain conditions, is repugnant to Ark.R.Crim.P. 36.1, which provides in part that "[e]xcept as provided by Rule 24.3(b) there shall be no appeal from a plea of guilty or nolo contendre [contendere]." We think not.

Granted, we hold steadfast to our previous holdings that, where there is a conflict between our procedural rules and a statute, statutes are given deference only to the extent to which they are compatible with our rules, and that conflicts which compromise those rules are resolved with our rules remaining supreme. State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990); Hickson v. State, 316 Ark. 783, 875 S.W.2d 492 (1994). However, the acceptance of this appeal from a plea of guilty does not compromise our rule, for it does not constitute a review of the plea itself. Rather, it provides for a review of nonjurisdictional issues, such as the admission of testimony and evidence authorized by this new statute, which arose during the penalty phase of the trial subsequent to the entry of Hill's guilty plea. Because of this marked distinction, we allow this statute to stand as compatible with our rule, recognizing that the legislature has provided not only for separate and distinct procedures governing jury trials and sentencing by jury but for evidentiary matters as well.

More specifically, this departure from our previous holdings is premised in part on the fact that sentencing is now, in essence, a trial in and of itself, in which new evidence may be submitted. Under Ark.Code Ann. § 16-97-103, such evidence may include, but is not limited to, laws on parole, prior convictions, prior determinations of juvenile delinquency, victim impact statements or testimony, character evidence, evidence of aggravating and mitigating circumstances, evidence relevant to guilt, evidence admissible for sentencing only, and rebuttal evidence.

The introduction of evidence during this stage must be governed by our rules of admissibility and exclusion; otherwise, these proceedings would not pass constitutional muster, which is all the more reason to permit appeal. However, our review on appeal shall be confined to nonjurisdictional issues which arise during the penalty phase of the trial. This position by no means indicates a willingness on our part to review the imposition of sentence simply where the defendant maintains his sentence is excessive, when in fact his sentence is within the range prescribed by statute for the offense in question.

Recently, a Texas appellate court made a similar holding while ruling on the issue of whether a defendant's plea of guilty without an agreed recommendation as to punishment is a waiver of appellate court review. Jack v. State, 871 S.W.2d 741 (Tex.Cr.App.1994). In holding that appellate review of nonjurisdictional issues arising subsequent to the entry of the guilty plea is not waived, the Jack court reasoned that an accused cannot waive a defect in proceedings that have not yet occurred. Jack, supra; quoting King v. State, 687 S.W.2d 762, 767 (Tex.Cr.App.1985). This approach makes sense, and since Hill's assignments of error involve nonjurisdictional matters that occurred subsequent to his guilty plea, we will likewise accept jurisdiction of his appeal.

I. Testimony of prior attempt

Ark.Code Ann. § 16-97-103(6) provides that evidence relevant to sentencing by either the court or the jury may include "[e]vidence of aggravating and mitigating circumstances." The term "aggravation" has been well-defined in Black's Law Dictionary 712 (6th ed. 1990):

any circumstance attending the commission of a crime ... which increases its guilt or enormity or adds to its injurious consequences, but which is above and beyond the essential constituents of the crime ... itself.

The State maintains in its brief that the testimony regarding the prior attempt demonstrated that Hill knew Ms. Ardman, that he knew at times she carried significant amounts of cash, that he had previously seen her car, and that he had planned and intended to rob her at an opportune time. Clearly, this evidence meets the definition of aggravation.

Taking a common sense approach, we agree with the State's assertion that, in the absence of such evidence, the jury would be at a significant disadvantage in fulfilling its function if it were deprived of vital information concerning the circumstances of the crime and thus could not possibly determine an appropriate sentence. This rationale closely resembles the United States Supreme Court's discussion in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); quoting Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), which included the following observations:

So long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information as possible when...