Mark Lasker v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

MARK LASKER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-117

October 5, 2005

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT

[NO. CR 2004-484]

HON. MICHAEL A. MAGGIO,

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

Mark Lasker was convicted by a Faulkner County jury of the offense of being a felon in possession of a firearm and sentenced to ten years in the Arkansas Department of Correction concurrent with a ten-year sentence imposed pursuant to revocation of his probation. Lasker's probation revocation was affirmed by this court earlier this year in an unpublished opinion, Lasker v. State, CACR 04-1033 (Jun. 22, 2005). On appeal, Lasker argues that the trial court erred in failing to suppress the warrantless search of his residence and that the trial court denied him due process when it allowed the State to introduce four recent misdemeanor convictions in addition to three older felony convictions, including a felony conviction that was incorrectly represented to be residential burglary, rather than attempted residential burglary. We affirm.

Regarding Lasker's first point, the essential facts are not in dispute. In February 2004, law-enforcement officials received a phone call from a woman, identifying herself as Lasker's wife, who said that Lasker was using cocaine, was paranoid, was in possession of

a Glock handgun, and had been taken to the hospital the night before. On February 10, three probation officers and two officers from the Conway Police Department went to Lasker's residence to serve a protective order. Officer James Presley was standing in the living room with Lasker while other officers were searching the home for the weapon. Presley testified that Lasker said that he wanted to show him something and pointed to the top of an entertainment center. Presley saw what appeared to be a gun case, and he took it down and opened it to find a loaded Glock automatic pistol.

Probation officer Michelle Brewer testified that the police and probation officers did not obtain a warrant prior to their entry into Lasker's residence, because they believed it was unnecessary. She stated that the conditions of probation that Lasker had agreed to included permission to search his residence. A copy of the signed permission-to-search form was admitted into evidence over Lasker's objection that the signature was not authentic. Lasker does not challenge the authenticity of his signature on appeal.

Lasker's first argument, which is identical to the argument he made in his appeal of his revocation, is that the Fourth Amendment prohibits probation officers from conducting a warrantless search of a probationer's residence. He contends that trial court should have suppressed the evidence discovered and the statements he made at the time of the search. We disagree, but because of the difference in evidentiary standards associated with this case, as compared to the revocation proceeding, we reject this argument on a different basis than wedid in the revocation case.1 Because Lasker signed a consent to search form as a condition of his probation, we hold that he consented to the parole officers' entry into his residence.2

Our standard of review for a circuit court's action granting or denying motions to suppress evidence obtained by a warrantless search requires that we make an independent determination based upon the totality of the circumstances, giving respectful consideration to the findings of the circuit judge. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). In Cherry v. State, 302 Ark. 462, 791 S.W.2d 354 (1990), our supreme court held that such "consent-in-advance" does not violate the constitutional rights of the parolee because the supervision of parolees and probationers is a special need of the State, permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large. However, the court further held that in determining whether the search was carried out under the terms of the consent, two issues must be addressed: (1) whether there were reasonable grounds to investigate whether the appellant had violated the terms of his parole and (2) whether the search was conducted by the parole officer. Id.

Here, there were clearly reasonable grounds to investigate whether Lasker had violated the terms of his probation: there was a report that he was using narcotics andbrandishing a firearm, both of which were expressly forbidden under his terms of probation. When probation officers have information that a probationer has violated the terms of probation, they have reasonable grounds to investigate. See id.; see also Freeman v. State, 34 Ark. App. 63, 806 S.W.2d 12 (1991). Regarding the second part of the test, it is clear that there were probation officers involved in the search. The fact that other law enforcement officers also participated does not negate the required participation of probation officers. See Cherry supra; Freeman supra. Likewise, the assistance of the other officers did not negate Lasker's prior consent. Accordingly, the trial court did not err in refusing to suppress the handgun, because the warrantless search was proper.

For our discussion of Lasker's second point, some additional facts are necessary. He was charged with having been convicted of a non-violent felony and of being in possession of a firearm, a Class D felony. The information recited that the State sought enhancement because Lasker was an habitual offender with more than one but fewer than four felony convictions.3 In the sentencing phase of the trial the State presented evidence that, in addition to his felony convictions for burglary, theft of property, and second-degree forgery, he had misdemeanor convictions for possession of a controlled substance, criminal impersonation, and two counts of theft of property. In opposing the introduction of his misdemeanor convictions, Lasker argued that for habitual offender enhancement, only felony convictions were admissible. However, the State responded that it was not offering the misdemeanor convictions for the purposes of habitual-offender sentencing. The jury recommended a sentence of ten years in the Arkansas Department of Correction.

Lasker argues that he was denied due process when the trial court allowed the State to introduce four recent misdemeanor convictions during the sentencing phase of his trial along with three older felonies, including a conviction for residential burglary that was subsequently found to be a lesser offense of attempt to commit residential burglary. He contends that our habitual-offender-enhancement statute, Arkansas Code Annotated section 5-4-501 et seq. only refers to felonies, and makes "no reference whatsoever to misdemeanors," making the admission of his misdemeanor offenses "not only inadmissible, but highly prejudicial." Further, the admission of this evidence denied him a fair sentencing hearing, a right guaranteed by the Due Process Clause of the Fourteenth Amendment. We disagree.

A circuit court's decision to admit evidence in the penalty phase of a trial is reviewed for an abuse of discretion. Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002). All relevant evidence on the question of sentencing may be considered by the sentencing body. Marshall v. State, 342 Ark. 172, 27 S.W.3d 392 (2000). As the State correctly notes, misdemeanor convictions are expressly authorized by statute to be admitted into evidence during the sentencing phase of a trial. Arkansas Code Annotated section 16-97-103 (1987) in pertinent part states:

Evidence relevant to sentencing by either the court or a jury may include, but is not limited to, the following, provided no evidence shall be construed under this section as overriding the rape shield statute, § 16-42-101:

. . .

(2) Prior convictions of the defendant, both felony and misdemeanor. The jury may be advised as to the nature of the previous convictions, the date and place thereof, the sentence received, and the date of release from confinement or supervision from all prior offenses.

Furthermore, the trial court correctly instructed the jury on the law concerning habitual-offender enhancement, making it clear that the prior felony convictions applied to that aspectof Lasker's sentencing. The jury is presumed to have followed the court's instructions. Hall v. State, 315 Ark. 385, 868 S.W.2d 453 (1993).

Finally, concerning the misclassification of one of Lasker's prior felonies, wherein his attempt to commit residential burglary was listed incorrectly as residential burglary, we find it to be of no moment. Lasker failed to bring the mistake in the judgment and conviction order to the attention of the trial court, so any argument on this point is raised for the first time on appeal. Accordingly, we are not obligated to consider it. See Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002). Moreover, we note that because Lasker received a sentence that was within the appropriate range, he cannot show prejudice, and absent a showing of prejudice, we will not reverse. Id.

Affirmed.

Neal and Vaught, JJ., agree.

1 In Lasker v. State, CACR 04-1033 (Jun. 22, 2005), we held that it has long been the law in this State that the exclusionary rule does not apply in revocation hearings, Deere v. State, 59 Ark. App. 174, 954 S.W.2d 943 (1997), and that while there exists an exception to this general rule if the probationer can prove a lack of good faith by the law enforcement officers, Cook v. State, 59 Ark. App. 24, 952 S.W.2d 677 (1997), Lasker failed to raise or obtain a ruling on the question of bad faith at the hearing, or raise that point on appeal, and we did not address it.

2 The record reflects that February 8, 2000, Lasker signed the following consent to search: "I Mark Lasker, do hereby consent to my person, vehicle, residence, or any other property under my control may be searched by my Probation Officer and/or any law enforcement officer without a warrant if my Probation Officer has reasonable grounds to believe I have violated any terms of my Probation or may have committed any crime under the laws of the United States or the State of Arkansas."

3 The habitual-offender enhancement raised the total sentencing exposure for a Class D felony from six to twelve years. Ark. Code Ann. § 5-4-501 (Supp. 2004).