Mackey v. State

Jerry Sam MACKEY v. STATE of Arkansas

CA CR 96-309                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                      Divisions III and II
                Opinion delivered March 12, 1997


1.   Motions -- directed verdict -- superfluous in bench trial. -- Procedural
     requirements are different in bench and jury trials; in bench
     trials, no directed-verdict motion based on the sufficiency of
     the evidence need be made because it would be superfluous; the
     judge would only be directing his own verdict; the supposition
     is that a trial court, sitting as a trier of fact, would be
     sufficiently aware of the evidence and the elements of the
     crime so that no such motion would be necessary.

2.   Evidence -- trial court should have directed State to produce evidence
     beyond reasonable doubt that appellant had been convicted of three prior
     felonies. -- The appellate court held that the trial court
     should have directed the State to produce evidence beyond a
     reasonable doubt that appellant had been convicted of three
     prior felonies, which constituted an element of the
     allegations contained in the information.

3.   Trial -- bifurcation system created two distinct phases of criminal trial -
     - no certification of appellant's priors entered or discussed at
     sentencing. -- The bifurcation system created two separate and
     distinct phases of a criminal trial: guilt and punishment;
     here, the only evidence of appellant's priors was presented
     during the State's case in chief, in an attempt to prove the
     habitual element; no certification of priors was entered or
     discussed at sentencing.

4.   Evidence -- prosecutor's statements are not evidence -- nothing in record
     justified finding that appellant should be sentenced as habitual offender.
     -- Although being a habitual offender is not a separate
     offense, it is an enhancement provision that requires specific
     elements of proof that the record does not reflect were
     introduced in this case; both the information by which
     appellant was charged and the judgment and commitment order
     refer to appellant's habitual status under Ark. Code Ann.  5-
     4-501 rather than Ark. Code Ann.  16-90-803; the only "proof"
     that appellant had prior convictions was the State's
     contention "we have certification of defendant's priors"; 
     because a prosecutor's statements are not evidence, there was
     nothing in the record that justified the trial court's finding
     that appellant should be sentenced as a habitual offender.

5.   Appeal & error -- State's failure to require proof of appellant's priors
     during sentencing phase required reversal and remand for resentencing. --
     Although it was enacted at a later date, Ark. Code Ann.  16-
     90-803 contains no repealing clause, and does not conflict
     with Ark. Code Ann.  5-4-501; the range of sentencing is
     essentially the same under both statutes; accordingly, the
     State has the option of alleging specific habitual status in
     the information or simply charging the underlying offense;
     under the grid, a convicted felon's criminal history is
     automatically considered and applied in compiling a sentence; 
     the record here contained neither a copy nor the original
     presentence report and reflected that the State's only attempt
     to prove prior felony convictions was made during the guilt
     phase of trial; accordingly, the State's failure to provide
     proof of appellant's priors during the sentencing phase
     required reversal of the court's finding that appellant was a
     habitual offender and remand for resentencing.

     Appeal from Pulaski Circuit Court; Marion Humphrey, Judge;
reversed and remanded.
     William R. Simpson, Jr., Public Defender, by:  C. Joseph
Cordi, Jr., Deputy Public Defender, for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.
     Olly Neal, Judge.
     After an August 14, 1995, bench trial,  appellant Jerry Sam
Mackey was found guilty of the offense of residential burglary in
violation of Ark. Code Ann.  5-39-201(a)(2)(Repl. 1993) and being
an habitual offender under Ark. Code Ann.  5-4-501 (Repl. 1995). 
Mr. Mackey now appeals from the September 12, 1995, judgment of the
Pulaski County Circuit Court which reflected that he was sentenced
as an habitual offender, pursuant to Ark. Code Ann.  5-4-501.  Mr.
Mackey was sentenced to a 108-month term of imprisonment in the
Arkansas Department of Correction.  The evidence supporting
appellant's conviction is not in dispute, and the sufficiency of
the evidence to sustain the conviction is not challenged on appeal. 
Mr. Mackey challenges only his sentence on appeal, maintaining that
the State's evidence that he had been convicted of three prior
felonies was insufficient to justify the court's decision to
sentence him as an habitual offender.
     The State, citing Fellows v. State, 309 Ark. 545, 828 S.W.2d 847 (1992), argues that appellant's sufficiency argument was not
properly preserved for our review, and that as a result, we are
precluded from addressing the merits of the issue on appeal.  It is
undisputed that appellant failed to object to the insufficiency of
the evidence to prove his habitual status at trial.  
     The Fellows case is one of a line of cases following the
supreme court's holding in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).  In Wicks, an appeal from a jury verdict finding Wicks
guilty of two counts of rape, the supreme court addressed two of
Wicks's arguments, neither of which was supported by a
contemporaneous objection at trial.  In discussing the deficiency,
the court first noted the general, well-established rule that
failure to object to an alleged error at trial results in waiver of
the argument on appeal.  The court then noted four exclusive
exceptions to the rule: 1) when the death penalty is sought by the
State and the court fails to notify the jury of matters essential
to consideration of the death penalty; 2) where the trial judge
commits error of which defendant's counsel has no knowledge or
opportunity to object; 3) possibly where the trial court is
derelict in its duty to intervene without objection to correct a
serious error by admonition or order of mistrial; and 4) possibly
where the asserted error is one "affecting a substantial right."
     We note from the outset that while Wicks and its progeny all
were appeals from jury verdicts, the current appeal is from a bench
trial; the procedural requirements are different.  One such
difference was clarified recently in Strickland v. State, 322 Ark.
312, 909 S.W.2d 318 (1995).  The supreme court held in Strickland
that at bench trials, no directed-verdict motion based on the
sufficiency of the evidence need be made, as such would be
"superfluous"; "the judge would only be directing his own verdict." 
The court stated:
        Our supposition in the Igwe case was that a Trial Court,
        sitting as a trier of fact, would be sufficiently aware of
        the evidence and the elements of the crime that no such
        motion would be necessary, and that is why our rules do not
        require the motion to dismiss in non-jury-trial cases.  We
        adhere to that supposition today. 

Id. at 318.

     Because the supreme court has essentially relieved trial
counsel of the duty to apprise the trial court of deficiencies in
the evidence, including missing elements of proof, it has
concomitantly placed the burden upon trial judges to "step in" and
order dismissal or other appropriate remedy where the evidence is
insufficient.  Here the court should have directed the State to
produce evidence beyond a reasonable doubt that appellant had been
convicted of three prior felonies as such was an element of the
allegations contained in the information.  
     The argument has been made that appellant has misclassified
his argument as one of the insufficiency of the evidence when it
should really be countenanced as a challenge to an illegal
sentence.  That argument has no merit.  First of all, our
bifurcation system created two separate and distinct phases of a
criminal trial: guilt and punishment.  Here, the only evidence of
appellant's priors was presented during the State's case in chief,
in an attempt to prove the habitual element; no certification of
priors was entered or discussed at sentencing.  Secondly, while
being an habitual offender is not a separate offense, it is an
enhancement provision that requires specific elements of proof that
the record does not reflect were introduced in this case.    Both
the information by which he was charged and the judgment and 
commitment order refer to appellant's habitual status under  5-4-
501, not  16-90-803 (Supp. 1995).  The only "proof" that appellant
had prior convictions was the State's contention "we have
certification of defendant's priors."  Because a prosecutor's
statements are not evidence, there is nothing in the record that
justifies the court's finding that appellant should be sentenced as
an habitual.  See Henry v. State, 309 Ark. 1, 828 S.W.2d 346
(1992); Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991). 
Although it was enacted at a later date,  16-90-803 contains no
repealing clause, and does not conflict with  5-4-501; the range
of sentencing is essentially the same under both statutes. 
Accordingly, the State has the option of alleging specific habitual
status in the information or simply charging the underlying
offense.  Under the grid, a convicted felon's criminal history is
automatically considered and applied in compiling a sentence.  The
record here contains neither a copy nor the original presentence
report and reflects that the State's only attempt to prove prior
felony convictions was made during the guilt phase of trial. 
Accordingly, the State's failure to provide proof of appellant's
priors during the sentencing phase requires reversal of the court's
finding that appellant was an habitual offender, and remand for
resentencing.
     Reversed and remanded for resentencing.
     Robbins, C.J., and Stroud and Jennings, JJ., agree.
     Rogers and Pittman, JJ., dissent.
                 Judith Rogers, Judge, dissents.
     
     The appellant in this case was found guilty in a bench trial
of residential burglary.  The trial court passed the case for
sentencing, and after a subsequent hearing appellant was sentenced
by the trial court to a term of 108 months in the Arkansas
Department of Correction.  In this appeal, appellant does not
challenge his conviction.  Instead, he claims error only with
regard to the sentence he received, arguing that the trial court
erred in concluding that a prior conviction for theft by receiving
was a felony and not a misdemeanor conviction.  I must respectfully
dissent from this court's reversal on this point primarily because
the majority erroneously concludes that this issue is preserved for
appeal.
     Although not fully understood by the majority, the trial court
in this instance sentenced appellant, utilizing a presentence
report, pursuant to the sentencing guidelines which are found at
Ark. Code Ann.  16-90-801--16-90-804 (Supp. 1995) and the
sentencing grid adopted by the Arkansas Sentencing Commission. 
Arkansas Code Annotated  16-90-803(a)(1) (Supp. 1995) provides in
relevant part that:
   When a person charged with a felony ... is
found guilty in a trial before the judge ...
sentencing shall follow the procedures provid-
ed in this chapter.
Arkansas Code Annotated  5-4-102 (Repl. 1993) provides:
  (a) If punishment is fixed by the court, the
court may order a presentence investigation
before imposing sentence.

   (d)  Before imposing sentence, the court
shall advise the defendant or his counsel of
the factual contents and conclusions of any
presentence investigation or psychiatric
examination and afford fair opportunity, if
the defendant so requests, to controvert them. 
Sources of Confidential information need not
be disclosed.
At the sentencing hearing, the following discussion occurred among
the court, defense counsel, and the prosecuting attorney concerning
the information contained in the presentence investigative report
and its application to presumptive standards and the grid:
Defense Counsel:  The only mistake we really
saw with the presentence is that Miss Byrd
counted the misdemeanors that were more than
ten years old.  So, I think the State will
agree with me that it should be three point
two five as opposed to a four.

Prosecuting Attorney:  I would have to agree
with that, your Honor.  He does have numerous
misdemeanors but some of those were from, you
know, the very late Sixties, mid-Seventies. 
Under the law, those cannot be counted against
the sentencing grid.

Defense Counsel:  So, that's going to make it,
if you follow the grid, seriousness level six,
score of three.  Going to make it a hundred
and eight months in the Arkansas Department of
Correction.  I surely understand Miss Wells
and the neighborhood watch and their concern. 
All I'd ask is that it was a property crime,
nothing actually taken.  I believe a window
was going to have to be replaced in the door.
I don't believe the door was busted.  I be-
lieve it was the window that was actually
busted.  No injuries to anyone.  It did happen
a year six months, year seven months ago.  He
has gotten some rehab treatment.  I'd ask the
court to depart down from the hundred and
eight months.

The Court:  The Court's going to stick to the
grid.  That's a hundred and eight months.
As is shown by this discussion, appellant failed to raise any
objection to a theft by receiving conviction being considered by
the court in any capacity.  In fact, appellant's counsel himself
agreed that the presumptive sentence amounted to 108 months after
excluding certain outdated misdemeanor convictions.  Appellant was
thus afforded the opportunity to controvert the information
contained in the presentence report and should not now be heard to
complain for the first time on appeal.  Noland v. State, 265 Ark.
764, 580 S.W.2d 953 (1979); see also Nash v. State, 267 Ark. 870,
591 S.W.2d 670 (1979).  
     The majority, however, concludes that error can be found even
in the absence of an appropriate objection in the trial court based
on the supreme court's decision in Strickland v. State, 322 Ark.
312, 909 S.W.2d 318 (1995).  In Strickland, the court made a
distinction between the method of preserving the issue of the
sufficiency of the evidence in bench and jury trials.  The court
held that, unlike a jury trial, it is not necessary to move for a
directed verdict in a bench trial in order to challenge on appeal
the sufficiency of the evidence "to convict."  The majority in this
case reasons that, because appellant was tried by the court, he is
excused from the contemporaneous objection rule.  The decision in
Strickland, however, was based on the court's interpretation of
Rule 36.21, now numbered as Rule 33.1, of the Rules of Criminal
Procedure, which by its very terms applies only to the question of
the sufficiency of the evidence during the guilt phase of trial. 
The issue in this case, of course, involves the sentencing phase of
trial.  Therefore, any reliance on the decision in Strickland is
utterly and completely misplaced, and for this court to interpret
Rule 33.1 so as to apply to the sentencing phase of trial is
actually beyond this court's jurisdiction.  Ark. R. Sup. Ct. 1-
2(17)(vi).  But more to the point, the supreme court has expressly
held in two cases, both of which were appeals from bench trials,
that a contemporaneous objection is required in order to preserve
for appeal questions concerning evidence of prior convictions. 
Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993); Withers v.
State, 308 Ark. 507, 825 S.W.2d 819 (1992).  In so holding, the
court overruled our decision in Addington v. State, 2 Ark. App. 7,
616 S.W.2d 742 (1981), where we had determined that the absence of
an objection was no impediment to our review of the issue.  Here,
this court falls into the same error as was made in Addington,
despite clear precedent established by the supreme court.
     Moreover, the presentence report is not included in the
record, and thus this court cannot say with any degree of certainty
that such a conviction was even utilized by the court in making its
determination.  It is well settled that the appellant bears the
burden to bring up a record sufficient to demonstrate error.  Irvin
v. State, 28 Ark. App. 6, 771 S.W.2d 26 (1989).  
     Since appellant did not call this matter to the attention of
the trial court and since there is nothing in this record to
suggest that any error occurred, I cannot say that the trial court
erred in calculating the appellant's sentence.
     I am authorized to state that Judge Pittman joins in this
dissent.