Polivka v. State, CA CR06-1337 (Ark. App. 9/12/2007)

• Decision Date: 12 September 2007
• Docket Number: CA CR06-1337
• Parties: Joseph POLIVKA, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

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Joseph POLIVKA, Appellant v. STATE of Arkansas, Appellee.

CA CR06-1337

Court of Appeals of Arkansas

Division IV

Opinion Delivered September 12, 2007

Appeal from the Garland County Circuit Court, [No. CR2004-699I], Hon. John H. Wright, Judge.

Affirmed.

SAM BIRD, Judge.

In accordance with his guilty plea, Joseph Polivka was sentenced by a jury on two counts of criminal attempt to commit first-degree murder, two counts of felony firearm enhancement, and possession of a firearm by a convicted felon. The charges against him arose from the shootings of his wife and stepson on September 28, 2004. He received sentences of thirty years for each attempted murder, fifteen years for each firearm enhancement, and five years for the possession of a firearm. On appeal he contends that his fifteen-year sentences for the felony-firearm convictions are excessive. He argues that his sentences are "more than he will serve under his original sentence for the underlying crime" and that they effectively result in a life sentence. He also argues that the meritorious good time allowed by Ark. Code Ann § 16-90-121 should be applied to § 16-90-120, under which he was sentenced. We reject these arguments and affirm the sentences.

An individual must object to a sentence at the trial level, and this court does not consider such an argument raised for the first time on appeal. Fisher v. State, 84 Ark. App. 318, 139 S.W.3d 815 (2004). Further, a party is bound by the scope and nature of the objections and arguments made at trial. E.g., Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005). Prior to jury voir dire at the sentencing hearing, Polivka's counsel discussed with the judge whether or not meritorious good-time credit could be applied to reduce whatever sentence Polivka should receive on the firearm-enhancement counts. Ultimately, however, he did not object to his sentences on the grounds that they were "excessive" or on any other grounds. Because he did not object to the sentences at the proceedings below, he is barred from appealing them now.

Moreover, Polivka's sentences are not excessive. Use of a firearm as a means of committing a felony may, in the discretion of the sentencing court, subject the person convicted of the felony to an additional period of confinement in the state penitentiary for a period not to exceed fifteen years, to run consecutively and not concurrently with any period of confinement imposed for conviction of the felony itself. Ark. Code Ann. § 16-90-120(a) and (b) (Repl. 2006). The two fifteen-year sentences that Polivka received for felony-firearm enhancements are not excessive, as they are expressly permitted by statute. See also Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983) (holding that the trial court's decision to run sentences consecutively, rather than concurrently, was not cruel...