Brian Leonard Faulkens v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOSEPHINE LINKER HART, JUDGE

DIVISION III

BRIAN LEONARD FAULKENS

APPELLANT

V.

STATE OR ARKANSAS

APPELLEE

CACR00-698

February 14, 2001

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT

[NO. CR 97-85, CR 97-86, CR 97-88]

HONORABLE RALPH EDWIN WILSON, JR., CIRCUIT JUDGE

AFFIRMED

In January of 1999, Arkansas authorities placed a detainer on appellant, Brian Leonard Faulkens, and he was extradited from a Tennessee correctional facility on September 3, 1999, to face in Arkansas four counts of aggravated robbery. A jury found appellant guilty of two counts of aggravated robbery and one count of robbery, and he was sentenced to two thirty-year prison terms to run consecutively and a ten-year prison term to run concurrently. On appeal, appellant argues that he should not have been tried on the charges because the time for trial under the Interstate Agreement on Detainers Act had expired. Further, he argues that the trial court erred in failing to grant his motion to sever the four aggravated robbery counts. We affirm.

Appellant was incarcerated in a Tennessee correctional facility. On January 12, 1999, Edward Laxton of the Crittenden County Sheriff's Department mailed a certified copy of an alias capias warrant on the four charges to the Tennessee Department of Correction andasked that a hold be placed on appellant. On January 21, 1999, Laxton received a letter from Tennessee authorities telling him that the detainer was in place, and appellant's assigned site was the Hardeman County Correction Facility in Whiteville, Tennessee. According to appellant's testimony, on January 26, 1999, he delivered to the warden of the facility a form in which appellant requested a trial on the Arkansas charges. Shortly after July 16, 1999, Laxton received a compact agreement form from the Hardeman County Correctional Facility, notifying him that appellant requested a trial on the four charges. The form was then signed by the prosecutor, completed on August 27, 1999, and returned to Tennessee. On September 3, 1999, appellant was extradited to Arkansas. Appellant was tried on December 1, 1999.

On appeal, appellant argues that the four charges against him should have been dismissed because he was not brought to trial on the charges within the time provided under Article III of the Interstate Agreement on Detainers. See Ark. Code Ann. § 16-95-101

(1987). That article provides as follows:

(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint; provided that for good cause

shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

(Emphasis added).

Subsection (b) of Article III further provides that "[t]he written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections, or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested." Subsection (d) provides that "[t]he warden, commissioner of corrections, or other official having custody of the prisoner shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the state to which the prisoner's request for final disposition is being sent of the proceeding being initiated by the prisoner."

Appellant argues that pursuant to these provisions, he should have been brought to trial within 180 days of his providing notification to the warden in January of 1999. In response, the State argues that the 180-day time period for bringing appellant to trial did not begin to run until sometime after July 16, 1999, when the Crittenden County authorities received notice of appellant's request for a final disposition of the charges against him in Arkansas.

As the Arkansas Supreme Court has noted, the Interstate Agreement on Detainers "is a congressionally sanctioned interstate compact within the Compact Clause, U.S. Const. art. I, § 10, cl. 3, and thus is a federal law subject to federal construction." Cunningham v. State,341 Ark. 99, 102, 14 S.W.3d 869, 871 (2000)(citing Cuyler v. Adams, 449 U.S. 433 (1981)). As the State notes in its brief, the United States Supreme Court squarely addressed in Fex v. Michigan, 507 U.S. 43 (1993), the argument raised by appellant. There, the Court concluded that "the 180-day time period in Article III(a) of the IAD does not commence until the prisoner's request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him." Fex, 507 U.S. at 52. Given this holding, we agree with the State that the time began to run in July of 1999, not January of 1999, and appellant was thus timely brought to trial.

For his second issue on appeal, appellant argues that the four counts should have been severed because the events on which the counts were based occurred on separate nights and at separate locations, and thus they were not part of a single scheme or plan. The underlying events on which the four counts of aggravated robbery were based occurred on two days, November 10, 1996, and November 12, 1996. Two of the charges stemmed from the same incident on November 10, when appellant entered a Corner Mart convenience store and committed an aggravated robbery and accosted a patron. Appellant was convicted of the aggravated robbery of the Corner Mart but acquitted of the aggravated robbery of the patron. The third aggravated-robbery charge resulted from an incident on November 12 when, as the jury found, appellant committed a robbery at the Town and Country Cleaners. The fourth charge, and appellant's conviction thereof, stemmed from appellant's aggravated robbery of the Corner Mart on November 12.

In response, the State contends that the four counts were part of a single scheme or plan, noting that three of the counts stemmed from events that occurred at the same location, the Corner Mart, that two of these occurred at the same time, that the aggravated robbery of the Town and Country Cleaners was two days later and occurred, according to the prosecutor, only one hour earlier than the aggravated robbery at the Corner Mart. All of the robberies occurred in the town of Marion. The State also notes that in his confession, appellant remarked that he did what he did "to help get out of financial stress," that "[e]very cent that [appellant] got from the stores was used to pay a bill," and that he "chose these places because of their locations." Thus, the State concludes that the proximity of the robberies in time and place and the common purpose of the robberies supports the trial court's conclusion that the robberies were committed as part of a single scheme or plan.

We are mindful that Arkansas law provides that "[w]henever two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan, the defendant shall have a right to a severance of the offenses." Ark. R. Crim. P. 22.2(a) (2000). A single scheme or plan may be evidenced by the proximity in time or place of the offenses, the commission of the offenses with a common purpose, or other similarities between the crimes. See Passley v. State, 323 Ark. 301, 309, 915 S.W.2d 248, 252 (1996). "Granting or refusing a severance is a matter within the discretion of the trial court." Id. at 307, 951 S.W.2d at 251.

In the case at bar, we conclude that the trial court did not abuse its discretion in refusing to sever the offenses. Given appellant's common purpose in committing theoffenses, the proximity in both time and place of the offenses, and that the crimes occurred in commercial businesses, the robberies constituted a common scheme or plan. See id. at 309, 951 S.W.2d at 252(finding a common scheme or plan where the crimes occurred over a two-day period, the crimes occurred in the same locale and during the day, all involved residential burglaries in which the door was forced open, and there was testimony that the crimes were committed to raise money to travel to Florida to "pick up" the children); cf. Bunn v. State, 320 Ark. 516, 523-24, 898 S.W.2d 450, 545-55 (1995)(finding there was no common scheme or plan where there was no evidence that the improperly joined crime was planned in advance or as part of the other offenses, the crime involved a different informant, and occurred two days after the other offenses).

Affirmed.

Jennings and Crabtree, JJ., agree.