Walden v. State

• Decision Date: 01 May 2014
• Docket Number: No. CR–13–643.,CR–13–643.
• Citation: 2014 Ark. 193,433 S.W.3d 864
• Court: Arkansas Supreme Court
• Parties: Blake H. WALDEN, Appellant v. STATE of Arkansas, Appellee.

2014 Ark. 193

433 S.W.3d 864

Blake H. WALDEN, Appellant

v.STATE of Arkansas, Appellee.

No. CR–13–643.

Supreme Court of Arkansas.

May 1, 2014.

Cullen & Co., PLLC, by: Tim J. Cullen, for appellant.

Dustin McDaniel, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., and Nathan Aylesworth, 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, for appellee.

COURTNEY HUDSON GOODSON, Justice.

Appellant Blake Walden appeals a probation-revocation order from the Sebastian County Circuit Court sentencing him to a term of fourteen years in the Arkansas Department of Correction plus eight years' suspended imposition of sentence, to run consecutively. On appeal, Walden contends that the fourteen-year sentence imposed upon his revocation is illegal because (1) upon revocation, the circuit court imposed a sentence in excess of the originally imposed suspended sentence; and, (2) the circuit court improperly imposed multiple suspended sentences to run consecutively, despite the fact that his original suspended sentences ran concurrently. In short, Walden contends that the maximum sentence available upon his revocation was eight years' imprisonment with the two suspended sentences to run concurrently to that term, as opposed to the fourteen-year imprisonment followed by two consecutive terms of suspended sentences imposed by the circuit court. He requests that this court correct his sentence by reducing it to a term of no more than eight years. The court of appeals recommended this case for certification to this court on the basis that it presented an issue of substantial public interest and a legal principle of major importance. This court accepted certification, and our jurisdiction is proper pursuant to Arkansas Supreme Court Rule 4–2(d)(2). We affirm the fourteen-year term of imprisonment and modify the two suspended sentences to run concurrently with each other and with the term of imprisonment.

Walden's original sentences stem from three difference cases, CR2004–087, a felony hot-check conviction; CR2004–088, a second-degree forgery conviction; and CR2012–470, a possession of drug paraphernalia conviction. In the felony hot-check case and the second-degree forgery case, the trial court sentenced Walden to thirty-six months' imprisonment with an additional forty-eight months' suspended imposition of sentence.¹ In June 2010, Walden's suspended sentences were revoked for these two cases. Upon revocation, he was sentenced to serve an additional thirty-six months' imprisonment on the hot-check case and an additional forty-eight months' suspended imposition of sentence on the second-degree forgery case. Then, in 2012, Walden was sentenced to twenty-four months' imprisonment with forty-eight months' suspended imposition of sentence for possession of drug paraphernalia in CR2012–470.

On April 23, 2013, the State filed a petition to revoke Walden's suspended sentences from all three previous convictions.² In the revocation petition, the State contended that Walden was subject to maximum sentences totaling twenty-two years' imprisonment. The circuit court revoked Walden's suspended sentences on each charge and imposed a sentence of fourteen years' imprisonment for the felony hot-check charge with two additional suspended sentences of forty-eight months to run consecutively to the term of imprisonment and to each other. In total, Walden was sentenced to fourteen years' imprisonment with an additional eight years' suspended imposition of sentence beginning after the term of imprisonment ended.

This court views an issue of a void or illegal sentence as being an issue of subject-matter jurisdiction, in that it cannot be waived by the parties and may be addressed for the first time on appeal. State v. Webb, 373 Ark. 65, 281 S.W.3d 273 (2008) (citing Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002); Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992)). A sentence is void or illegal when the circuit judge lacks the authority to impose it. Cross v. State, 2009 Ark. 597, 357 S.W.3d 895. If we hold that a trial court's sentence was illegal and that the error had nothing to do with guilt, but only with the illegal sentence, we can correct the sentence in lieu of remanding. Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003).

In Arkansas, sentencing is entirely a matter of statute. Donaldson v. State, 370 Ark. 3, 257 S.W.3d 74 (2007) (citing Ark.Code Ann. § 5–4–104(a) (Repl.2013) (“No defendant convicted of an offense shall be sentenced otherwise than in accordance with this chapter.”)). In stating this general rule, this court has consistently held that sentencing shall not be other than in accordance with the statute in effect at the time of the commission of the crime. Sullivan v. State, 366 Ark. 183, 234 S.W.3d 285 (2006).

Although Walden did not raise his argument that the sentence imposed upon revocation was illegal below, this failure is not a procedural bar to our review of his sentence because an appellant can challenge an illegal sentence for the first time on appeal. For purposes of appellate review, the issue of an illegal sentence is not solely whether it is within the prescribed statutory range, but whether the trial court had authority to impose the sentence. Donaldson, supra.

Walden contends that the circuit court's fourteen-year sentence is illegal because he was only subject to a maximum sentence of eight years based on the suspended sentences he had received in his prior revocation. In addition, Walden contends that, based on the circuit court's originally imposed suspended imposition of sentence, the maximum sentence he could receive upon revocation for the possession of drug paraphernalia charge was forty-eight months. Combining the suspended sentences for all three charges, Walden asserts that he is subject to a maximum sentence of eight years upon revocation. In contrast, the State contends that Walden was subject to a maximum sentence of twenty-two years based on the maximum sentences available for Walden's three prior convictions and after subtracting the time Walden previously served in the Arkansas Department of Correction.

As we have already mentioned, Walden pled guilty to a felony hot-check charge and a second-degree forgery charge based on crimes that occurred in 2003. Therefore, Act 1569 of 1999 was in effect at the time Walden committed these two crimes. Act 1569 amended Arkansas Code Annotated section 5–4–301(d) to add a new subsection (d)(2), which at that time provided:

(d)(1) When the court suspends the imposition of sentence on a defendant or places him on probation, the court shall enter a judgment of conviction only if:

(A) It sentences the defendant to pay a fine and suspends imposition of sentence as to imprisonment or places the defendant on probation; or

(B) It sentences the defendant to a term of imprisonment and suspends imposition of sentence as to an additional term of imprisonment.

(2) The entry of a judgment of conviction shall not preclude:

(A) The modification of the original order suspending the imposition of sentence on a defendant or placing a defendant on probation following a revocation hearing held pursuant to 5–4–310; and

(B) Modifications set within the limits of § 5–4–303, 5–4–304, and 5–4–306.

Moseley v. State, 349 Ark. 589, 595, 80 S.W.3d 325, 328 (2002). We have recognized that, as a result of the addition of subsection (d)(2) by Act 1569 of 1999, trial courts were specifically authorized to modify original court orders and even add penalties to those orders up to the statutory limits. In addition, the Act permitted trial courts to modify sentences during a revocation proceeding if the Act was in effect at the time the original crime was committed. Cf. Moseley, supra (holding that the trial court was within its jurisdiction to modify a probation order upon revocation) with Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003) (holding that Act 1569 did not permit a trial court to modify a sentence during a probation revocation when the original crime was committed prior to the effective date of the Act).

Furthermore, Arkansas Code Annotated section 5–4–309(f) (Supp.2003) was in effect at the time Walden committed his crimes. That section provided:

(A) If the court revokes a suspension or probation, it may enter a judgment of conviction and may impose any sentence on the defendant that might have been imposed originally for the offense of which he was found guilty.

(B) Provided, that any sentence to pay a fine or to imprisonment, when combined with any previous fine or imprisonment for the offense, shall not exceed the limits of § 5–4–201 or § 5–4–401, or if applicable, § 5–4–501.

Ark.Code Ann. § 5–4–309(f) (Supp.2003).

Based on the statutes in effect at the time of Walden's crimes, trial courts were permitted to modify original court orders, including orders of incarceration followed by suspended sentences, and impose any sentence that might have been imposed originally. Walden's felony hot-check conviction was a Class B felony subject to a maximum term of twenty years' imprisonment. Ark.Code Ann. § 5–4–401(a)(3) (Repl.2013).³ Therefore, upon revocation, the trial court was authorized to modify Walden's original sentence up to the maximum statutory sentence of twenty years, minus any previous imprisonment imposed, for that charge. The parties do not dispute that Walden has served a total of six years' imprisonment, three years in his original sentence and three years upon his first revocation, for the felony hot-check conviction. Therefore, the circuit court's sentence of fourteen years' imprisonment upon his revocation for the felony hot-check conviction is not an illegal sentence.

As for Walden's second-degree forgery conviction, it was a Class C felony subject to a maximum sentence of ten years. Ark.Code Ann. § 5–4–401(a)(4) (Repl.2013). Like his...