Myers v. State

• Decision Date: 17 December 2014
• Docket Number: No. CR–14–296,CR–14–296
• Citation: 2014 Ark. App. 720,451 S.W.3d 588
• Parties: Marlon Tramain Myers, Appellant v. State of Arkansas, Appellee
• Court: Arkansas Court of Appeals

2014 Ark. App. 720

451 S.W.3d 588

Marlon Tramain Myers, Appellant

v.State of Arkansas, Appellee

No. CR–14–296

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered December 17, 2014

Hancock Law Firm, by: Charles D. Hancock, Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., and Trae Norton, Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission to the Bar of the Supreme Court under the supervision of Darnisa Evans Johnson, Deputy Att'y Gen., Little Rock, for appellee.

Opinion

PHILLIP T. WHITEAKER, Judge

Appellant Marlon Myers attempts to challenge the sufficiency of the evidence supporting the revocation of his suspended imposition of sentence. Because we conclude that his arguments are not preserved for appeal, we affirm.

Myers entered a plea of guilty to one count of first-degree domestic battery and was sentenced to six years' imprisonment followed by fourteen years' suspended imposition of sentence (SIS). Among the terms and conditions of his SIS were that he not violate any federal, state, or municipal law, and pay a $100 public-defender fee. The State subsequently filed a petition to revoke Myers's SIS, alleging that he had committed new criminal offenses and failed to pay his court-ordered monetary obligations.

At a revocation hearing, the State introduced certified copies of Myers's convictions for second-offense driving while intoxicated and driving on a suspended license; in addition, the State introduced a case profile from Myers's domestic-battery file, showing a balance of fines and costs in the amount of $1,640 and a public-defender-fee balance of $100. The State then rested, and Myers moved for a directed verdict, which the circuit court denied. Myers then testified and admitted to having pled guilty to the DWI count.

At the conclusion of the hearing, Myers's counsel argued for a more lenient sentence but acknowledged that Myers's suspended sentence for domestic battery would exclude him from several programs, such as drug court or a regional correctional facility. The circuit court found that Myers had violated the terms of his suspended sentence, revoked his SIS, and sentenced him to four years in the Arkansas Department of Correction, followed by another ten years' SIS.

On appeal, Myers raises three separate arguments, asserting that the circuit court erred by not directing a verdict because (1) the State failed to present any evidence that Myers was subject to a suspended imposition of sentence; (2) the State failed to present any evidence that Myers was subject to the terms and conditions of a suspended sentence; and (3) the State failed to present any evidence that Myers had been given a copy of the terms and conditions of a suspended sentence. None of these arguments are preserved for appellate review.

Myers's first two points address the State's failure to introduce a copy of the terms and conditions of his SIS. He urges that the only evidence offered by the State was evidence of his DWI-related convictions and his failure to pay his fines and public-defender fee. He asserts that the State failed to introduce a copy of the terms and conditions of his SIS in order to prove that he was subject to a SIS or to prove the requirements of the terms and conditions of the SIS. Thus, Myers contends that there was insufficient evidence on which the circuit court could revoke his SIS.

Myers couches his argument as a challenge to the sufficiency of the evidence, which is an argument that may be raised for the first time on appeal in an appeal of a revocation in the absence of a motion for directed verdict. See Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). This court, however, has held that an argument that the State failed to introduce a copy of the terms and conditions of a suspended sentence is a procedural objection that must be raised before the circuit court. Cotta v. State, 2013 Ark. App. 117, 2013 WL 625735 ; Whitener v. State, 96 Ark. App. 354, 241 S.W.3d 779 (2006). Myers never objected to the State's failure to introduce the terms and conditions of his suspended sentence. Under Cotta and Whitener, therefore, Myers's first two arguments are not preserved for appeal.

Myers's third point on appeal is that, because the State failed to introduce evidence showing that he was given a copy of the terms and conditions of his SIS, the circuit court was “foreclos[ed] from knowing what terms and conditions Myers was to follow.” Myers urges that this specific argument is not a procedural argument but is, instead, a challenge to the sufficiency of the evidence and thus distinguishable from Cotta, supra.

This same argument, however, was rejected in Nelson v. State, 84 Ark. App. 373, 141 S.W.3d 900 (2004). There, the appellant argued that...