Tortorich v. Tortorich

Ralph Van HUDGENS v. STATE of Arkansas

CR 95-971                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 15, 1996


1.   Motions -- appellant's motion to suppress evidence did not
     pertain to suppression of evidence illegally obtained -- not
     governed by ten-day limitation. -- Where appellant's motion to
     suppress all evidence did not pertain to the suppression of
     evidence illegally obtained, it was not governed by the ten-
     day limitation set forth in A.R.Cr.P. Rule 16.2(b); all of the
     evidence used in appellant's DWI trial was obtained at the
     scene of his arrest and prior to his arrival at the police
     station, where he alleged constitutional violations occurred.

2.   Automobiles -- DWI -- breathalyzer test -- appellant did not
     have right to counsel before taking test. -- Although Ark.
     Code Ann.  16-85-101 (1987) provides that no prisoner shall
     be denied the right to consult an attorney of his own choosing
     or to call a physician of his own choosing while confined to
     any prison in this state awaiting trial, appellant could not
     be characterized as a prisoner confined to prison awaiting
     trial by virtue of his DWI arrest; further, he did not have
     the right to counsel before refusing to take the breathalyzer
     test.

3.   Evidence -- no right to independent chemical test where
     appellant refused to take breathalyzer test. -- Where
     appellant refused to take a breathalyzer test, he had no right
     to an independent chemical test.

4.   Evidence -- no right to be released to gather exculpatory
     evidence. -- Appellant did not have the right to be released
     from custody in order to gather exculpatory evidence.

5.   Criminal procedure -- illegal arrest or detention -- defendant
     not entitled to dismissal of charge when prompt-first-
     appearance rule is violated. -- A defendant is not entitled to
     a dismissal of the charge on which he is arrested when
     A.R.Cr.P. Rule 8.1, which requires a prompt first appearance,
     is contravened; it is also well settled that an illegal arrest
     or detention does not void a subsequent conviction.

6.   Criminal law -- sentencing by same judge on reconviction --
     more severe sentence may not be imposed because of court's
     vindictiveness. -- Where a sentence received by a defendant on
     reconviction is meted out by the same judge both times is the
     basis for concern about vindictiveness; a more severe sentence
     may not be imposed because of any vindictiveness of the court
     arising from the convicted party having successfully appealed
     the first sentence; this would violate the Due Process Clause
     of the Fourteenth Amendment. 

7.   Criminal law -- sentencing by same judge on reconviction --
     requirements for imposition of more severe sentence. --
     Whenever a judge imposes a more severe sentence upon a
     defendant after a new trial, the reasons for his doing so must
     affirmatively appear; those reasons must be based upon
     objective information concerning identifiable conduct on the
     part of the defendant occurring after the time of the original
     sentencing proceeding, and the factual data upon which the
     increased sentence is based must be made part of the record so
     that the constitutional legitimacy of the increased sentence
     may be fully reviewed upon appeal.

8.   Criminal law -- resentencing -- trial court did not meet
     requirements -- sentence modified and judgment affirmed. --
     Where the trial court merely stated that the facts were more
     egregious than he originally thought, this recitation did not
     meet the requirement that its reasons be based on the
     defendant's conduct occurring after the time of the original
     sentencing; where there were no new witnesses or new facts
     presented in appellant's retrial, the trial court provided no
     findings of fact to overcome the presumption of vindictiveness
     in appellant's resentencing, and the supreme court held that
     the sentence could not stand; however, where the trial court's
     error has nothing to do with the issue of culpability and
     relates only to punishment, the supreme court may correct the
     error in lieu of reversing and remanding the case; thus, the
     sentence was modified and the judgment affirmed.


     Appeal from Washington Circuit Court; William Storey, Judge;
affirmed as modified.
     Doug Norwood, for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.

     Andree Layton Roaf, Justice.April 15, 1996.   *ADVREP6*










RALPH VAN HUDGENS,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE,






CR95-971


APPEAL FROM THE WASHINGTON 
COUNTY CIRCUIT COURT,
NO. CR93-9,
HON. WILLIAM STOREY, JUDGE,




AFFIRMED AS MODIFIED.
                       Andree Layton Roaf


     The appellant, Ralph Van Hudgens, was convicted of DWI in a
bench trial in circuit court.  Hudgens contends the trial judge
erred by 1) not suppressing all of the state's evidence and
dismissing the charge, and 2) resentencing him to a harsher
sentence upon retrial after his first conviction was reversed on
appeal.  We affirm the conviction, but agree that the trial judge
erred in sentencing Hudgens and modify the sentence.
     Ralph Van Hudgens was stopped by a Fayetteville police officer
at approximately 2:00 a.m. on July 4, 1992, after the officer had
observed Hudgens' vehicle swerving and repeatedly striking the
curbside.  The officer testified that Hudgens smelled of alcohol,
and that he failed all of the field sobriety tests administered. 
Hudgens was arrested and taken to the police station, where he
refused to take the breathalyzer test.  Hudgens posted a bond, but
was not released until 4:00 p.m. the following afternoon.  Hudgens
was convicted in the Fayetteville Municipal Court of DWI, first
offense, and violation of the implied-consent law.  He appealed the
conviction to Washington County Circuit Court and was again
convicted of both offenses in a bench trial before Judge William
Storey.  He was sentenced by Judge Story to a $250.00 fine, ninety
days suspension of his driver's license, and one day of jail time
suspended.  
     Hudgens' conviction was reversed and his case remanded by the
Court of Appeals for violation of his right to jury trial, in an
opinion not designated for publication.  He was retried by Judge
Story on the DWI charge only, and was again convicted.  He was
sentenced by Judge Story to a $500.00 fine, ninety days suspension
of his driver's license, and five days jail time.  
     Hudgens filed a motion to suppress all evidence and to dismiss
the charges against him in municipal court and prior to both bench
trials in circuit court.  In his motion, he alleged that he was
unlawfully held in custody, after he refused the breathalyzer test,
in violation of certain statutes and rules of criminal procedure,
and was thus prevented from gathering exculpatory information in
violation of the United States and Arkansas Constitutions.  In both
bench trials, the trial court denied the motion as being untimely
because it was filed less than ten days before the trial; in the
second bench trial, the trial court also found that even if the
motion was timely, Hudgens had failed to demonstrate prejudice.  
     On appeal, Hudgens first argues that the trial court erred in
failing to suppress the State's evidence and to dismiss the charges
against him.  He further contends that the trial court incorrectly
determined that his motion was untimely filed pursuant to Ark. R.
Crim. P. 16.2, because the rule only applies to evidence illegally
seized in violation of the Fourth, Fifth, and Sixth amendments.  He
contends that the police did not gather evidence illegally, but
rather his unlawful detention for more than twelve hours after his
arrest prevented him from having a blood test performed; he
suggests that such a test could have provided "exculpatory
evidence."    
     Arkansas Rule of Criminal Procedure 16.2 pertains to motions
to suppress evidence and states in pertinent part:
            (a) Objection to the use of any evidence, on
          the grounds that it was illegally obtained,
          shall be made by a motion to suppress
          evidence.  

          * * * *

            (b) The motion to suppress shall be timely
          filed but not later than ten (10) days before
          the date set for the trial of the case, except
          that the court for good cause shown may
          entertain a motion to suppress at a later
          time.

We agree that Hudgens' motion does not pertain to the suppression
of evidence illegally obtained, and is thus not governed by the
ten-day limitation set forth in Rule 16.2(b).  All of the evidence
used in the trial of Hudgens for DWI was obtained at the scene of
his arrest, and prior to his arrival at the police station where he
alleges the violations took place.  He asserts that because he was
illegally detained in violation of various Arkansas statutes and
rules, all the evidence submitted by the state should have been
suppressed; Hudgens' arguments concerning statutory and rules
violations are all without merit.  
     Hudgens first argues that he was not allowed to call an
attorney or physician prior to his refusal to submit to the
breathalyzer test, as required by Ark. Code Ann.  16-85-101, which
provides that "no prisoner shall be denied the right to consult an
attorney of his own choosing or to call a physician of his own
choosing if in need of one while confined to any prison in this
state awaiting trial."   Clearly, Hudgens cannot be characterized
as a prisoner confined to prison awaiting trial by virtue of his
DWI arrest.  He further did not have the right to counsel before
taking the breathalyzer test.  Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987).
     Hudgens also argues that the conduct of the officers after his
arrest violated Ark. Code Ann.  27-50-602, 603, 606, and 609, and
that such violations also require suppression of all the evidence
against him.  Hudgens contends that he should have been immediately
taken before a magistrate upon his arrest, as required by  27-50-
602, or that he should have been released from custody pursuant to
 27-50-603, which provides for a person not taken before a
magistrate to post a bond and be forthwith released from custody. 
     Hudgens also asserts that because his driver's license was
seized upon arrest, he should not have been required to post bond
at all, pursuant to  27-50-606.  This section provides for deposit
of driver's license in lieu of posting of bond.  Hudgens further
argues that because jail personnel set his bond, he was made to
post a bond without seeing a judge in violation of Ark. R. Crim. P.
8.1, which requires that an arrested person not released by
citation or other lawful manner be taken before a judicial officer
without unnecessary delay, and Rule 9-2(a) which requires that the
judicial officer set money bail.   
     Even if Hudgens were correct in his assertions that the
various statutes and rules were violated, his argument that the
evidence should be suppressed and the charges dismissed has no
merit.  His argument is based solely upon the denial of the
opportunity to obtain an independent chemical test.  As he refused
to take the breathalyzer test he had no right to an independent
chemical test.  See Patrick v. State, 295 Ark. 473, 750 S.W.2d 391
(1988); Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992).  Nor
did Hudgens have the right to be released from custody in order to
gather exculpatory evidence.  Calnan, supra.  
     Moreover, Hudgens testified that he was detained for more than
twelve hours before he was allowed a phone call and before he was
released from custody.  He is in essence complaining of an illegal
detention.  We have addressed the effect of such a violation of
Ark. R. Crim. P. 8.1 in Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978), by stating that a defendant is not entitled to a
dismissal of the charge on which he is arrested when the rule is
contravened.  It is also well settled that an illegal arrest or
detention does not void a subsequent conviction.  See Cook v.
State, 274 Ark. 244, 623 S.W.2d 820 (1981); Bolden, supra.
     Hudgens also argues that the trial court erred in imposing a
harsher sentence upon retrial.  When Hudgens objected to the
sentence, the trial judge stated that "upon reflection, after
hearing the facts again, the facts are much more egregious than I
had initially concluded."  
     The fact that the sentence received by a defendant is meted
out by a judge both times is the basis for concern about
vindictiveness. Smith v. State, 286 Ark. 247, 691 S.W.2d 154
(1985).   We have stated unequivocally that a more severe sentence
may not be imposed because of any vindictiveness of the court
arising from the convicted party successfully appealing the first
sentence; this would clearly be violative of the due process clause
of the Fourteenth Amendment. Marshall v. State, 265 Ark 302, 578 S.W.2d 32 (1979).  In Marshall, we cited with approval the United
States Supreme Court case of North Carolina v. Pearce, 395 U.S. 711
(1969), wherein it stated: 
          [W]e have concluded that whenever a judge
          imposes a more severe sentence upon a
          defendant after a new trial, the reasons for
          his doing so must affirmatively appear. Those
          reasons must be based upon objective
          information concerning identifiable conduct on
          the part of the defendant occurring after the
          time of the original sentencing proceeding,
          and the factual data upon which the increased
          sentence is based must be made part of the
          record, so that the constitutional legitimacy
          of the increased sentence may be fully
          reviewed upon appeal.

     In this instance, the trial court merely stated that the facts
were more egregious than he originally thought.  However, this
recitation by the trial court does not meet the requirement set
forth in Marshall that his reasons be based on the defendant's
conduct occurring after the time of the original sentencing.  
     In Texas v. McCullough, 475 U.S. 134 (1985), the Supreme Court
held that the presumption of vindictiveness had been overcome
where, to justify the longer sentence, the judge entered the
following findings of fact:
          [T]he testimony of two state witnesses who had
          not testified at the first trial added to the
          credibility of the state's key witness and
          detracted from the credibility of respondent
          and a defense witness; the two new witnesses'
          testimony directly implicated respondent in
          the commission of the murder and shed new
          light upon his life and conduct; and it was
          learned for the first time on retrial that 
          respondent had been released from prison only
          four months before the murder.

     In Hudgens' retrial, there were no new witnesses or new facts
presented.  Consequently, the trial court has provided no findings
of fact to overcome the presumption of vindictiveness in the
resentencing of Hudgens, and the sentence cannot stand.  However,
where the trial court's error has nothing to do with the issue of
culpability and relates only to punishment, we may correct the
error in lieu of reversing and remanding the case.  Roberts v.
State, CR95-647, 324 Ark. ___, ___ S.W.2d ___ (Opinion delivered
April 1, 1996); Bangs v. State, 310 Ark. 235, 835 S.W.2d 294
(1992).  We thus modify Hudgens' sentence by reinstating the $250
fine and one day jail time suspended, as imposed by the trial court
in Hudgens' first trial.      
     The trial court's judgment of conviction and sentence is
affirmed as modified.