Nahlen v. State

Donale Peter NAHLEN v. STATE of Arkansas

CR 97-422                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered October 2, 1997


1.   Statutes -- sections of three-strikes statute ambiguous --
     appellant had no standing to raise ambiguity argument where he
     clearly fell within conduct proscribed by either section of
     statute. -- In the "three-strikes and you're out" sentencing
     statue, Arkansas Code Annotated  5-4-501 (Supp. 1995),
     section (d)(1) contains the words "separate and distinct prior
     occasions" but  5-4-501(3)(A) does not, thereby resulting in
     ambiguity because each of those subsections purports to
     provide when the three-strikes enhancement applies; however,
     where appellant was eligible for an enhanced sentence under
     either section, the trial court chose to apply the more
     liberal interpretation in both verdict forms and instructions
     submitted to the jury, which interpretation was favorable to
     appellant, and appellant was still found guilty, appellant had
     no standing to complain because he clearly fell within the
     conduct proscribed by the statute.  

2.   Statutes -- challenge to constitutionality of statute on
     ground of vagueness requires that individual must be entrapped
     innocent who did not receive fair warning -- appellant could
     not prevail on vagueness argument. -- Appellant's argument
     that the statue at issue was "vague" was rejected in favor of
     both the trial and supreme court's  conclusion that each
     alternative presented by the statute was clear but that each
     was inconsistent with the other; however, even if the statute
     were properly said to be vague, appellant  could not prevail
     because when challenging the constitutionality of a statute on
     the ground of vagueness, the individual challenging the
     statute must be one of the "entrapped innocent," who has not
     received fair warning; if, by his action, that individual
     clearly falls within the conduct proscribed by the statute he
     cannot be heard to complain; appellant had clear warning from
     the statute that, at a minimum, he was facing a sentence of
     life in prison without parole if he were found to have
     committed qualifying offenses on separate and distinct
     occasions.

3.   Statutes -- challenge to constitutionality -- appellant could
     not show prejudicial impact. -- In order to challenge the
     constitutionality of a statute, a person must demonstrate that
     the challenged statute had a prejudicial impact on him; any
     ambiguity in the statute could not have affected appellant
     because he was eligible for the enhanced sentence under either
     of the inconsistent subsections.  


4.   Evidence -- tape-recorded statements correctly ruled hearsay -
     - appellant's argument without merit. -- Appellant's argument 
     that tape-recorded statements about appellant's character that
     were not subject to cross-examination should have been allowed
     because testimony as to a person's character, based upon
     reputation, is not hearsay, apparently a reference to Ark. R.
     Evid. 803(21), which excepts from inadmissible hearsay
     reputation as to character, was without merit; the rule does
     not provide that such evidence may be presented by other than
     a witness subject to cross-examination, and appellant supplied
     no authority on the point; the trial court ruled, correctly,
     that the tape-recorded statements, not subject to cross-
     examination in any form, would be hearsay; appellant
     was not prejudiced by the refusal to admit the tape into 
     evidence because it could have had no effect on his sentence.


     Appeal from Pulaski Circuit Court; Chris Piazza, Judge;
affirmed.
     William C. McArthur, for appellant.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.,
for appellee.

     David Newbern, Justice.
     Donale Peter Nahlen was convicted of two counts each of
kidnapping and aggravated robbery.  Pursuant to the so-called
"three strikes and you're out" sentencing statute, Ark. Code Ann.
 5-4-501(d) (Supp. 1995), Mr. Nahlen was sentenced to life in
prison without parole.  Mr. Nahlen maintains that  5-4-501(d) is
"unconstitutionally vague, ambiguous, and unclear" and that his
conviction therefore should be reversed.  Mr. Nahlen also argues
that his conviction should be reversed, and the case remanded,
because the Trial Court prevented him from introducing, during the
trial's penalty phase, video-taped statements made by some of his
friends and acquaintances about their opinions of, and their
experiences with, Mr. Nahlen.  The statute is not vague, but it is
ambiguous.  The Trial Court, however, chose to apply the more
liberal alternative interpretation.  Even though the statute was
interpreted in a way favorable to Mr. Nahlen, it required
imposition of a sentence of life without parole.  The Trial Court's
refusal to admit the video tape in the sentencing phase thus
becomes irrelevant.  We affirm the conviction and sentence.  
     Mr. Nahlen and a female friend entered a pharmacy and robbed
the pharmacist and his employee of drugs and cash at gunpoint.  The
victims were made to lie on the floor while they were bound with
duct tape.  They managed to free themselves before the culprits
left the store.  The pharmacist and Mr. Nahlen exchanged gunfire as
a result of which Mr. Nahlen and an innocent customer-bystander
were injured.  Mr. Nahlen and his companion were held until the
police arrived.  

                 1. The "three strikes" statute
     Aggravated robbery and kidnapping are both Class Y felonies. 
Under Ark. Code Ann.  5-4-401(a)(1) (Repl. 1993), a defendant
convicted of a Class Y felony may receive a sentence of not less
than ten years and not more than forty years, or life.  By its
terms,  5-4-401(a)(1) does not foreclose the possibility of
parole.  Mr. Nahlen, however, was sentenced to life without parole
because, pursuant to  Ark. Code Ann.  5-4-501(d) (Repl. 1995), his
aggravated robbery and kidnapping convictions qualified as felonies
"involving violence" and because he had two or more prior
convictions for violent felonies on his record.  In other words, as
this was Mr. Nahlen's "third strike," he received a harsher
sentence under  5-4-501(d) than he would have otherwise received
under  5-4-401(a)(1).   The provisions of  5-4-501(d) relevant to
this case are:

          (1) A defendant who is convicted of a felony
     involving violence enumerated in subdivision (d)(2) of
     this section and who has previously been convicted on two
     (2) or more separate and distinct prior occasions of one
     (1) or more of the felonies involving violence enumerated
     in subdivision (d)(2) of this section shall be sentenced
     to an extended term of imprisonment, without eligibility
     for parole or community punishment transfer, as follows:
               (A) For a conviction of a Class Y felony, a
          term of not less than life in prison; . . .
          (2) For the purposes of this subsection, a felony
     involving violence shall mean:
               (A) Any of the following felonies enumerated
          as follows: . . .
               (iii) Kidnapping,  5-11-102;
               (iv) Aggravated robbery,   5-12-103; . . .

          (3)(A) After reaching the verdict of guilty on a
     felony involving violence, the same jury or the same
     judge sitting without a jury shall sit again in order to
     hear additional evidence determined pursuant to the
     procedures outlined in  5-4-502, and if it is then
     determined beyond a reasonable doubt that in fact the
     defendant has previously pleaded guilty or nolo
     contendere to, or been found guilty of, two (2) or more
     prior felonies involving violence, then the defendant
     shall be sentenced in accordance with the provisions of
     subdivision (d)(1) of this section. [Emphasis supplied.] 

     The problem is that  5-4-501(d)(1) contains the words
"separate and distinct prior occasions" but 5-4-501(3)(A) does
not, and each of those subsections purports to provide when the
three-strikes enhancement applies.
     The State proffered three Arkansas judgments, as well as one
from Montana, reflecting Mr. Nahlen's convictions for aggravated
robbery, a "violent offense" within the meaning of the three-
strikes law.  Each conviction resulted from Mr. Nahlen's plea of
guilty.  The Arkansas convictions arose from incidents occurring on
three different dates in three different counties.  Mr. Nahlen was
represented by a different lawyer in each of the three separate
proceedings.  In response to a request from Montana authorities,
each of the Arkansas sentences was altered to provide that it would
be served in Montana concurrently with the Montana forty-year
sentence.  Apparently Mr. Nahlen had agreed to plead guilty to the
Montana charge if the Arkansas sentences could be served
concurrently with his Montana sentence.
     Mr. Nahlen requested that the Arkansas convictions be "treated
as one instead of three" in light of his assessment that the three
priors "all coincide and relate one to the other."  In light of the
provision for application of the "three strikes" statute only when
a defendant has been "convicted on two (2) or more separate and
distinct prior occasions of one (1) or more of the felonies
involving violence,"  5-4-501(d)(1) (emphasis added), defense
counsel conceded that the three aggravated robberies were all
"different actions" but insisted that "the punishment for them was
just one occasion and one sentencing and it was just run
concurrent, one with the other."  (Emphasis added).  Mr. Nahlen's
counsel maintained that the convictions "were all in one period of
time" and "should be joined for purposes of this habitual statute." 
     After the jury had returned its verdict of guilty on the four
offenses charged, the Trial Court provided the jury with two
additional verdict forms.  One read as follows:

          We, the Jury, find beyond a reasonable doubt that the
     Defendant has previously pled guilty or been found guilty on
     separate and distinct prior occasions of two or more prior
     felonies involving violence.

The other form contained the statement in the negative, i.e.,
"...we do not find...."  The jury returned the positive form.  
     Although we make no determination whether it was proper for
the Trial Court to submit the issue to the jury, as that is not an
issue in this appeal, we conclude Mr. Nahlen has no basis for
urging his ambiguity argument in view of the fact that, as the
result of the verdict forms and instruction submitted to the jury,
he received the benefit of the more liberal of the two possible
interpretations.  
     We agree with the State's position that Mr. Nahlen was
eligible for an enhanced sentence under the statute whether the
language in  5-4-501(d)(1), or the language in  5-4-501(d)(3)(A),
controlled.  Thus, Mr. Nahlen lacks standing to complain because he
"clearly falls within the conduct proscribed by the statute." 
Vickers v. State, 313 Ark. 64, 69, 852 S.W.2d 787, 790 (1993).  
     We do not ignore the part of Mr. Nahlen's argument in which he
refers to the statute at issue as "vague."  We reject that
characterization in favor of the Trial Court's and our conclusion
that each alternative presented by the statute is clear but that
each is inconsistent with the other.  Thus, the statute containing
both is ambiguous.  Even if the statute were properly said to be
vague, however, Mr. Nahlen could not prevail.

     It is an accepted principle that when challenging the
     constitutionality of a statute on the ground of
     vagueness, the individual challenging the statute must be
     one of the "entrapped innocent," who has not received
     fair warning.  If, by his action, that individual clearly
     falls within the conduct proscribed by the statute he
     cannot be heard to complain.  
  
Burrow v. State, 282 Ark. 479, 481, 669 S.W.2d 441, 443 (1984). 
Mr. Nahlen had clear warning from the statute that, at a minimum,
he was facing a sentence of life in prison without parole if he
were found to have committed qualifying offenses on separate and
distinct occasions.
     "In order to challenge the constitutionality of a statute, a
person must demonstrate that the challenged statute had a
prejudicial impact on him.  Montgomery v. State, 277 Ark. 95, 640 S.W.2d 108 (1982)."  Greer v. State, 310 Ark. 522, 523, 837 S.W.2d 884, 885 (1992).  Any ambiguity in the statute could not have
affected Mr. Nahlen because he was eligible for the enhanced
sentence under either of the inconsistent subsections.  

                2.  Videotaped character evidence
     In both the guilt-innocence phase and the sentencing phase of
the trial Mr. Nahlen asked to be allowed to present a video-tape
recording of character testimony by acquaintances from Montana. 
The State responded that it would wish to cross-examine any such
witness.  The request to allow the jury to view the videotape was
denied in each instance as it was inadmissible hearsay.
     Mr. Nahlen now argues that testimony as to a person's
character, based upon reputation, is not hearsay.  Although not
specifically made, the reference is apparently to Ark. R. Evid.
803(21) which excepts from inadmissible hearsay "Reputation as to
character.  Reputation of a person's character among his associates
or in the community."  We note that the rule does not provide that
such evidence may be presented by other than a witness subject to
cross-examination, and Mr. Nahlen supplies us with no authority on
the point.  The Trial Court ruled, correctly, that the tape-
recorded statements, not subject to cross-examination in any form,
would be hearsay.  
     The Trial Court also mentioned, again correctly, that if it
were suggested to the jury that it could do other than that 
mandated by the three-strikes statute, it would amount to a
nullification of the law.  We agree.  Mr. Nahlen was not prejudiced
by the refusal to admit the tape into evidence because it could
have had no effect on his sentence.

                         3. Rule 4-3(h)
     The record of trial has been examined for errors prejudicial
to Mr. Nahlen to which objection was made at the trial.  None has
been found.
     Affirmed.