Robert Lee Gilliam v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

ROBERT LEE GILLIAM

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 05-529

DECEMBER 14, 2005

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FIFTH DIVISION

[NO. CR2003-1772, CR2003-3371]

HONORABLE WILLARD PROCTOR, JR., JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Robert Lee Gilliam was placed on four years' probation for theft by receiving on August 12, 2003, and in a separate case he was ordered to serve six years' probation for commercial burglary and theft of property on October 20, 2003. On February 3, 2004, the State filed petitions to revoke Mr. Gilliam's probations on the basis that he violated his conditions by committing aggravated robbery and theft of property on November 9, 2003. After a revocation hearing, the trial court revoked Mr. Gilliam's probations and sentenced him to fifteen years in prison.

Mr. Gilliam now appeals, arguing that the trial court erred in revoking his probations on a ground that was not alleged in the petitions. The trial court announced from the bench that its decision to revoke was based on a violation of the condition that Mr. Gilliam not associate with anyone involved in crime. Because the State failed to put him on notice of that specific violation, Mr. Gilliam contends that his revocations must be reversed. We affirm.

Michael Brown testified for the State at the revocation hearing. He stated that on the evening of November 9, 2003, he was delivering pizzas and was called to a residence to make a delivery. When he arrived and walked up to the house, he found it to be vacant so he turned to go back to his car. At that time, two men jumped out from behind a mattress that was leaning against the house. The men pulled guns on Mr. Brown, pushed him down, and took his bank bag, wallet, and cell phone. Mr. Brown could not identify his assailants because they wore bandanas over their faces.

Detective Dane Pederson investigated the case and developed three suspects. The suspects were Mr. Gilliam, Curtis Wells, and Martin Gurley.

Mr. Gurley was sixteen years old at the time of the hearing, and he agreed to give testimony against Mr. Gilliam and Mr. Wells in exchange for having his case transferred to juvenile court. Mr. Wells was also on probation, and his revocation hearing was held simultaneously with Mr. Gilliam's.

Mr. Gurley testified that on the night of the robbery Mr. Wells ordered a pizza from a phone booth, and Mr. Wells and Mr. Gilliam ran around a house. Mr. Gurley was instructed to stand at the corner and watch out for the police, and he complied. Mr. Gurley stated that Mr. Gilliam was carrying a gun, and that he saw Mr. Gilliam put the gun to the pizza-delivery man's head. Mr. Gilliam and Mr. Wells then came running from the house and had some money and a cell phone.

In reaching its decision to revoke at the conclusion of the hearing, the trial court announced:

Condition Number 7 says not associate with anyone involved in crime and report to your probation office as provided. Obviously, they were just placed on probation the month before, but Number 7 is the one that's specifically implicated here. And at a minimum, I am going to make a finding that Mr. Gurley was involved in a crime, the crime of aggravated robbery. That's fairly simple. And I am going to also make afinding that Mr. Wells and Mr. Gilliam were also involved with a person, i.e. Mr. Gurley, who was involved in the commission of a crime and that crime being aggravated robbery.

For reversal of the trial court's decision, Mr. Gilliam relies on the fact that neither of the petitions for revocation made the allegation that he violated his probation by associating with a person involved in crime. Rather, the only allegation was that he violated a condition by committing aggravated robbery and theft. Mr. Gilliam argues that this failure of notice denied him due process and prejudiced him because his defense was limited to the issue alleged in the revocation petitions, while the trial court revoked on a different basis.

Mr. Gilliam cites Hill v. State, 65 Ark. App. 131, 985 S.W.2d 342 (1999), in support of his argument. In that case, the trial court revoked the appellant's probation for violations not alleged in the State's revocation petition. In reversing, we stated:

For reversal, appellant contends that it was a denial of due process to permit evidence of probation violations not enumerated in the petition to revoke. We agree. Although in a revocation hearing a defendant is not entitled to the full panoply of rights that attend a criminal prosecution, he is entitled to due process. Because due process is a flexible concept, each particular situation must be examined in order to determine what procedures are constitutionally required. Caswell v. State, 63 Ark. App. 59, 973 S.W.2d 832 (1998). Here, the record shows that, over appellant's objection to lack of notice, the State was permitted to introduce evidence of violations not enumerated in the petition to revoke, including nonpayment of fines and three other DWI convictions. The record also shows that the trial judge declined to revoke appellant's probation on the basis of the violation specified in the petition to revoke, but instead revoked appellant's probation on the basis of violations and incidents not mentioned in the petition to revoke. We hold that this procedure was fundamentally unfair, because a defendant cannot properly prepare for the hearing without knowing in advance what charges of misconduct are to be investigated as a basis for the proposed revocation of the probation. Hawkins v. State, 251 Ark. 955, 475 S.W.2d 887 (1972).

Hill v. State, 65 Ark. App. at 132-33, 985 S.W.2d at 342-43.

It is true that appellant's right to due process required that he be given notice of the conditions of probation that he was alleged to have violated. Cheshire v. State, 80 Ark. App. 327, 95 S.W.3d 820 (2003). However, it is also true that the denial of this right, eventhough a constitutional one, must be objected to at trial to be preserved for appeal. Id. The appellant in Hill v. State, supra, preserved his argument by objecting to his lack of notice of the violations that were not included in the revocation petition. In the instant case, Mr. Gilliam did not claim surprise or lack of notice, or otherwise make any objection to the basis for revocation announced by the trial court.

When an issue is not brought to the attention of the trial court, we do not consider it on appeal because the trial court had no opportunity to rule on the issue. Ussery v. State, 308 Ark. 67, 822 S.W.2d 848 (1992). Had Mr. Gilliam made a proper objection, the trial court might have allowed the State to amend its revocation petitions and granted a continuance, or could have decided whether the State met its burden of proof on its allegation that Mr. Gilliam committed aggravated robbery and theft of property. But because no objection was made to the trial court, we are unable to reach the issue on appeal.

Affirmed.

Bird and Griffen, JJ., agree.