Cline v. State
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Cite as 2011 Ark. App. 315
ARKANSAS COURT OF APPEALS
DIVISION III
CACR 10-1125
No.
RODNEY CHRISTOPHER CLINE
APPELLANT
Opinion Delivered
April 27, 2011
APPEAL FROM THE CRAIGHEAD
COUNTY CIRCUIT COURT,
WESTERN DISTRICT
[NO. CR-06-125, CR-05-1155, CR051046]
V.
STATE OF ARKANSAS
APPELLEE
HONORABLE DAVID BURNETT,
JUDGE
AFFIRMED AS MODIFIED
DOUG MARTIN, Judge
Appellant Rodney Cline appeals from the sentences he received as a result of the
revocation of his suspended imposition of sentence (SIS) and probation, challenging the
length of the sentences and the trial court’s refusal to send him to drug court. We affirm the
sentence as modified.
On February 22, 2006, Cline entered a plea of guilty to violating Arkansas’s Hot
Check Law, for which he received a sentence of sixty months’ SIS. Cline also pled guilty to
residential burglary, receiving sixty months’ probation, and to criminal trespass, for which he
was sentenced to ninety days in the county jail. On February 25, 2008, the State filed a
petition to revoke Cline’s SIS and probation, alleging that he had failed to pay restitution and
Cite as 2011 Ark. App. 315
costs, failed to report, failed to complete a one-day tour of the Arkansas Department of
Correction as ordered, and tested positive for marijuana and methamphetamine.
The circuit court held a hearing on the revocation petition on July 12, 2010. After
the court found by a preponderance of the evidence that Cline had violated the terms and
conditions of his probation and SIS, Cline called his grandmother, Nancy Puckett, to testify
during the sentencing portion of the hearing. Puckett stated that she would like “to see the
judge extend his probation or give him drug court, whichever he needs.” Cline also asked
the court for a “second chance,” requesting that he “get another chance at probation or drug
court.”
The court ruled that it was not able to sentence anyone to drug court without the
agreement of the prosecuting attorney and the probation officer. The court then sentenced
Cline to sixty months for both offenses, with the sentences to run consecutively, and an
additional sixty months’ SIS. The court also ordered Cline to “mandatorily submit himself
to the drug treatment program within the Department of Correction.” The judgment and
commitment order reflecting Cline’s sentence was entered on July 12, 2010, and Cline filed
a timely notice of appeal on August 5, 2010.
In his sole argument on appeal, Cline does not challenge the sufficiency of the
evidence supporting the revocation of his SIS and probation. Rather, he complains that “his
punishment of two consecutive terms of sixty months was unduly harsh and that drug court
could have been used for a sentencing tool.” Cline acknowledges, however, that his
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Cite as 2011 Ark. App. 315
sentences are within the statutory sentencing range for violation of the Arkansas Hot Check
Law and for residential burglary.1 He nevertheless argues that this court can reduce a sentence
that “was a result of passion or prejudice or that was a clear abuse of discretion.”2 We are
unable to reach the merits of his argument, as it is not preserved for appeal.
Although Cline argues that the court’s sentencing decision was unduly harsh, Cline
failed to object to the sentences at the time they were imposed. In Ladwig v. State, 328 Ark.
241, 942 S.W.2d 571 (1997), the supreme court held that “[a] defendant who makes no
objection at the time sentence is imposed has no standing to complain of it.” Ladwig, 328
Ark. at 246, 942 S.W.2d at 574 (citing Williams v. State, 303 Ark. 193, 794 S.W.2d 618
(1990)). Here, when the circuit court announced Cline’s sentence at the end of the
revocation hearing, Cline merely asked for an appeal bond and did not raise any objection
to the sentences. Accordingly, Cline’s argument regarding the perceived harshness is not
preserved for appeal.
1
Cline’s conviction under the Arkansas Hot Check Law, Arkansas Code Annotated
section 5-37-302 (Repl. 2006), was a Class C felony, which carries a punishment range of
three to ten years. Ark. Code Ann. § 5-4-401(a)(3) (Repl. 2006). Residential burglary is a
Class B felony, Ark. Code Ann. § 5-39-201(a)(2) (Repl. 2006), punishable by five to twenty
years. Ark. Code Ann. § 5-4-401(a)(3).
2
Although we do not reach the merits of Cline’s arguments, we note that the appellate
courts are not free to reduce a sentence so long as the sentence is within the range of
punishment contemplated by the legislature. See Dooly v. State, 2010 Ark. App. 591, ___
S.W.3d ___.
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Cite as 2011 Ark. App. 315
Cline also asserts that the trial court was incorrect in ruling that Cline could not be
sentenced to drug court without the consent of the prosecution and the probation officer;
however, this argument is also not preserved for appeal. While both Cline and his
grandmother testified that they believed he should be given another chance in drug court,
Cline again failed to object or to specifically request that the court sentence him to drug
court at the time the court pronounced the sentence. When there is no objection to the
sentence at the time of pronouncement, this court will not consider an argument on appeal
pertaining the sentence. See Neal v. State, 298 Ark. 565, 769 S.W.2d 414 (1989).
We thus affirm the trial court’s order sentencing Cline to prison. We are compelled,
however, to correct a portion of the sentence. In its order sentencing Cline to the Arkansas
Department of Correction, the circuit court included, as a “special condition” of its order
imposing sentence, that Cline “shall complete mandatory drug treatment while in the ADC.”
This provision was incorporated into the Judgment and Commitment Order entered on
July 12, 2010. Although Cline does not raise this as an issue on appeal, the circuit court’s
imposition of this special condition amounted to an illegal sentence.
Arkansas law is well settled that a challenge to an illegal sentence may be raised for the
first time on appeal. Campea v. State, 87 Ark. App. 225, 189 S.W.3d 459 (2004). Moreover,
the issue of an illegal sentence is an issue of subject-matter jurisdiction that this court can raise
sua sponte, even if not raised on appeal and not objected to in the trial court. Harness v. State,
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Cite as 2011 Ark. App. 315
352 Ark. 335, 101 S.W.3d 235 (2003); Wright v. State, 92 Ark. App. 369, 214 S.W.3d 280
(2005).
In Richie v. State, 2009 Ark. 602, ___ S.W.3d ___, our supreme court held that the
trial court imposed an illegal sentence when it attempted to require the appellant to undergo
drug and alcohol treatment as a condition of his incarceration. In that case, the State filed a
petition to revoke appellant Richie’s probation. The court granted the revocation petition
and, on the judgment and commitment order, sentenced Richie to ten years in the Arkansas
Department of Correction and ordered him to submit to drug and alcohol treatment and
counseling while in prison. Richie, 2009 Ark. 602, at 2–3, ___ S.W.3d at ___.
On appeal, Richie argued that the circuit court had imposed unlawful conditions on
his sentence, and the supreme court agreed. Noting first that sentencing in Arkansas is
entirely a matter of statute, the court looked to Arkansas Code Annotated section 5-4-104(d),
which sets out authorized sentences and provides as follows:
(d) A defendant convicted of an offense other than a Class Y felony, capital
murder, § 5-10-101, treason, § 5-51-201, or murder in the second degree, §
5-10-103, may be sentenced to any one (1) or more of the following, except as
precluded by subsection (e) of this section:
(1) Imprisonment as authorized by §§ 5-4-401 - 5-4-404;
(2) Probation as authorized by §§ 5-4-301 - 5-4-311;
(3) Payment of a fine as authorized by §§ 5-4-201 - 5-4-203;
(4) Restitution as authorized by a provision of § 5-4-205; or
(5) Imprisonment and payment of a fine.
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Id. at 7, ___ S.W.3d at ___.
The supreme court stated that a circuit court may certainly place conditions on a
defendant when the court suspends the imposition of sentence or places the defendant on
probation. Id. (citing Ark. Code Ann. § 5-4-303(a) (Repl. 2006)). The court determined,
however, that “there is no similar provision in section 5-4-104(d) that . . . allow[s] a court
to place specific conditions on a sentence of incarceration.” Id. The court concluded as
follows:
Criminal statutes are to be strictly construed, with any doubts resolved in favor
of the defendant. See Brown v. State, 375 Ark. 499, 292 S.W.3d 288 (2009); Stivers v.
State, 354 Ark. 140, 118 S.W.3d 558 (2003). Moreover, no defendant convicted of
an offense shall be sentenced otherwise than in accordance with our statutes. See Ark.
Code Ann. § 5-4-104(d). Because no statute authorized the action taken, the circuit
court in this case imposed an illegal sentence when it attempted to require Richie to
undergo drug and alcohol treatment as a condition of his incarceration. To this extent,
the sentence was illegal, and we remand to the circuit court with directions to strike
the unlawful conditions and for the entry of a new judgment and commitment order
consistent with this opinion.
Id. at 11, ___ S.W.3d at ___.
Richie clearly holds that a circuit court cannot require, as a “special condition” on a
defendant’s sentence, that the defendant undergo mandatory drug treatment and
rehabilitation. As the Richie court noted, once a circuit court enters a judgment and
commitment order, jurisdiction is transferred to the Department of Correction, and it is for
the Department “to determine any conditions of incarceration, such as whether the
defendant will undergo drug treatment.” Id. The circuit court’s special condition in this case
thus constituted an illegal sentence, and while we affirm the revocation and the sentence in
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Cite as 2011 Ark. App. 315
general, we strike the “special condition” of the judgment and commitment order and
modify the order to reflect that Cline is not required to complete mandatory drug treatment
while in the Arkansas Department of Correction. See Harness v. State, supra.
Affirmed as modified.
HART and GRUBER, JJ., agree.
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