Tarsherick Holmes v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, Judge

DIVISION I

TARSHERICK HOLMES

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR00-305

NOVEMBER 1, 2000

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT,

CR96-54A, 96-55A

HON. CHARLES DAVID BURNETT, JUDGE

AFFIRMED

Tarsherick Holmes appeals from an order of Crittenden County Circuit Court revoking his probation and suspended imposition of sentences and sentencing him to forty years in the Arkansas Department of Correction. On appeal, he argues that the trial court erred in failing to consider the presumptive sentences as listed on the Arkansas sentencing grid, making improper findings in its departure report, and imposing an "overly harsh" sentence, which he describes as a "one thousand (1,000%) to two thousand (2,000%) percent deviation from the presumptive sentence," that was not justified. We affirm.

Because Holmes does not argue that there was insufficient evidence to revoke his probation and suspended imposition of sentences, only a brief recitation of the facts isnecessary. On July 28, 1997, Tarsherick Holmes pled guilty to two counts of residential burglary and two counts of Class C felony theft. Holmes was placed on 120 months' probation for one of the burglary convictions, and imposition of sentence was suspended on the other three counts for 120 months. His probation and suspended sentences were conditioned on, among other things, his good behavior, regular reporting to his probation officer, and his payment of his fines, court costs, and probation fee. On November 15, 1999, the State filed an amended petition to revoke Holmes's probation and suspended imposition of sentence, alleging failure to report to his probation officer; failure to pay fines, costs, and probation fees; failure to notify the sheriff and his probation officer of his current address and employment; failure to write a letter of apology; and committing the offenses of aggravated assault, felon in possession of a firearm, and two counts of second-degree battery.

At Holmes's revocation hearing, his probation officer, Roscoe Jackson, testified that Holmes had only made three of his monthly probation appointments in the twenty-nine to thirty months since July of 1997. Jackson also stated that Holmes was behind in his payments on his supervision fee. Kathy McCorkle testified that she was the custodian of the criminal fee bills for the Crittenden County Sheriff's Department, and she stated that her records showed that Holmes had not made any payments on his fine and court costs since July of 1997. She also stated that Holmes had not contacted her about these payments. Alissia Todd, Holmes's fiancée, testified that on October 8, 1999, the police were summoned to a disturbance, at which time she made a hand-written statement to police stating that Holmes fired a gun at her three times. She claimed, however, that she still loved Holmes and that she was angry with him when she made the statement because Holmes was with another woman. Jeffrey Mark Karo testified that Holmes attacked and beat him while he was incarcerated with Holmes at the Crittenden County Detention Center. According to Karo, Holmes battered him after he refused to give Holmes his food. Karo stated that he suffered a broken jaw in the altercation and had to have his mouth wired shut for a month. Pictures of Karo were admitted into evidence showing that in addition to his broken jaw, Karo suffered a cut or contusion on the top of his head.

Testifying in his own defense, Holmes admitted that he missed "several" probation meetings, but asserted that "several" of the missed appointments were due to the fact that he was incarcerated. He denied assaulting Todd and claimed that he was not the aggressor in his altercation with Karo, although he admitted that he hit Karo "once." Holmes claimed he had no idea how Karo's jaw was broken, however, he admitted that he did not see anyone else hit Karo.

In granting the State's revocation petition, the trial court found that Holmes failed to report to his probation officer and to pay fines and costs as ordered and that Holmes had committed two assaults and batteries while on probation, one of which while he was in jail. Regarding the battery while he was incarcerated, the trial court made a specific finding that Holmes was the aggressor. The trial court sentenced Holmes to two consecutive twenty-year sentences. When Holmes objected, the trial judge stated that he was not "bound" to follow the Arkansas sentencing grid because it was "advisory, not compulsory."

On the day of Holmes's revocation hearing, a document was filed entitled "Prosecutor's Short Report of Circumstances," in which the following aggravating factors were listed: "Defendant knew or had reason to know the victims were particularly vulnerable(aged, handicapped, very young, etc.); Violation of position of public trust or recognized professional ethics; Degree of property loss, personal injury or threatened personal injury substantially greater than characteristic of the crime; There is a single conviction for a crime involving multiple victims or incidents; Defendant on probation or parole at the time of the crime; Serious prior record; and Efforts to conceal crime." The trial court also filed a departure report that listed the following aggravating factors: "Offender's conduct manifested extreme cruelty during commission of current offense; Offender knew victim was vulnerable due to extreme youth, advanced age, disability, or ill health; Offense was committed in manner that exposed risk of injury to others; Offense was a violent or sexual offense committed in victim's zone of privacy; and Revocation on new cases/charges."

Citing Martin v. State, 337 Ark. 451, 989 S.W.2d 908 (1999), Holmes first argues that the trial court erred by not considering the presumptive sentencing standards embodied in the Arkansas sentencing grid. He asserts that the presumptive sentence was twenty-four months for one burglary count, and his sentence was an unjustified "1,000% to 2,000%"upward departure from the grid. Holmes further argues that the prosecutor's Short Report of Circumstances "displayed its lack of concern for the Court's massive departure" because some of the grounds cited by the State were inapplicable and not supported by the evidence. He also asserts that the aggravating factors recited in the departure report were also not supported by the evidence. This argument is without merit.

It is within the trial court's discretion to impose punishment within the statutory range. Miles v. State, 59 Ark. App. 97, 954 S.W.2d 286 (1997). If, pursuant to a revocation proceeding, a trial court sets a sentence within the statutory range, the sentence cannot bedeemed to be excessive. Deere v. State, 59 Ark. App. 174, 954 S.W.2d 943 (1997).

Holmes does not assert that his two consecutive sentences for his residential burglary convictions fall outside the statutory range, and indeed they do not. Residential burglary is a Class B felony, Ark. Code Ann. § 5-39-201(a)(2) (Repl. 1997), and the statutory range is not less than five nor more than twenty years. Ark. Code Ann. § 5-4-401(a)(3) (Repl. 1997). Furthermore, the trial court was correct when it stated that the sentencing grid was merely advisory. See Ark. Code Ann. § 16-90-801(b) (Supp. 1999). Accordingly, Holmes's reliance on Martin v. State, supra, is misplaced. While it is true that the supreme court rejected the State's contention that the grid did not apply to revocation proceedings, in dicta the supreme court nonetheless reaffirmed the well-settled proposition that pronouncing a sentence within the statutory range would not constitute reversible error.

Finally, regarding Holmes's assertions that several entries on the "Prosecutor's Short Report of Circumstances" and the departure report were erroneous, we hold that it is not preserved for appellate review, in that Holmes failed to raise this issue to the trial court. Woods v. State, 323 Ark. 605, 916 S.W.2d 728 (1996).

Affirmed.

Crabtree and Jennings, JJ., agree.