Jerome Sims v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION III

JEROME SIMS,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR01-46

JANUARY 9, 2002

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT,

NO. CR91-755, CR97-528,

HON. JOHN FOGLEMAN, JUDGE

AFFIRMED

Appellant Jerome Sims was convicted of sale or delivery of a controlled substance and stealing property. Sims subsequently filed a timely notice of appeal. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(j)(1) (2001), Sims's court-appointed counsel has filed a motion to withdraw as his attorney, stating that this appeal is without merit. The State did not file a brief, and, though given the opportunity to do so, Sims did not file a pro se statement of points on appeal. We concur that Sims's appeal would be without merit. Therefore, counsel's motion to be relieved is granted, and the decision below is affirmed.

Factual and Procedural History

In June 1992, Sims pleaded guilty to the crime of sale or delivery of a controlled substance. The court suspended imposition of sentence on this charge for a period of tenyears, conditioned on Sims's compliance with written rules, including his obedience to all

state, federal, and local laws. Subsequently, in 1996, the State filed a petition to revoke Sims's suspended imposition of sentence, alleging that he had violated the conditions of his suspension by breaking into a cigarette machine at Southland Greyhound Park and stealing property. After a hearing in May 1997, during which Sims pled guilty, the court sentenced him to three years' imprisonment on the breaking or entering charge, and the court suspended imposition of sentence on the theft charge for a period of ten years, conditioned upon Sims's compliance with written rules, including payment of restitution to Southland Greyhound Park, and upon his obedience to all state, federal, and local laws. The court allowed the State to enter a nolle prosequi on the revocation of the suspended imposition of sentence it had filed on the controlled substance conviction.

In September 2000, the State petitioned to revoke Sims's suspended imposition of sentence on both the delivery of a controlled substance and theft of property convictions, alleging that Sims had failed to pay restitution as ordered on the theft conviction and that he had violated state law by raping a thirteen-year-old girl. Sims pleaded not guilty to the charges in that petition. The court found Sims guilty of violating the terms of the suspended imposition of sentence, and sentenced him to thirty years' imprisonment on the delivery of a controlled substance conviction and ten years' imprisonment on the theft of property conviction. The court based its departure from the sentencing guidelines on the violent sexual nature of Sims's crimes, his serious prior criminal record, the court's finding that Sims intimidated a witness, and Sims's commission of crimes while under court supervision.

Analysis of the Adverse Rulings

Sims's attorney addresses four issues in his argument that there is no merit to this appeal: (1) there is no speedy trial argument; (2) there is no legitimate objection to appellant's inculpatory statement; (3) the evidence is sufficient to find that the appellant violated the terms of the suspended imposition of sentence on both counts; (4) the penalty assessed by the circuit court is within the range prescribed by law.

1. Speedy Trial

Sims's attorney is correct in stating that there is no speedy trial argument. The right to a speedy trial does not apply to revocation hearings. Dority v. State, 329 Ark. 631, 951 S.W.2d 559 (1997). Furthermore, even if Sims had a right to a speedy trial, he waived that right. In Wilkerson v. State, 53 Ark. App. 52, 920 S.W.2d 15 (1996), we held that Arkansas Rule of Criminal Procedure 28.1, under which a defendant's failure to make a pretrial motion to dismiss the charge on speedy trial grounds results in a waiver, applies to revocation proceedings. Therefore, there is no merit to a speedy trial argument.

2. Inculpatory Statement

The State was allowed to introduce an inculpatory video statement given by Sims while he was in custody. Defense counsel originally objected on the grounds that the statement had not been disclosed prior to the hearing on the revocation petition, but then admitted that he had not filed a formal motion for discovery. Rule 17.1 of the Arkansas Rules of Criminal Procedure states that it is the prosecuting attorney's obligation to disclose information to defense counsel upon a timely motion. Because Sims failed to make a motionfor discovery, he waived his right to protest. Where there was no request for disclosure by defense counsel, it cannot be said that Rule 17.1 was violated by the admission of evidence. Plummer v. State, 270 Ark. 11, 603 S.W.2d 402 (1980).

Defense counsel then appeared to object on the ground that the State had failed to lay a proper foundation for the introduction of the statement. In examining whether the court properly admitted a defendant's statement, we must examine the totality of the circumstances. Godbold v. State, 336 Ark. 251, 983 S.W.2d 939 (1999). Miranda warnings are only necessary when a statement is made during a custodial interrogation. Id. We have said that statements made while in police custody are presumed to be involuntary and the burden rests on the State to prove their voluntariness and a waiver of Miranda rights by a preponderance of the evidence. See Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 374 (1998); Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998). In determining voluntariness, this court looks to whether the statement and waiver were the result of free and deliberate choice rather than coercion, intimidation, and deception. Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999); Smith v. State, supra, (citing Colorado v. Spring, 479 U.S. 564, 107 S. Ct. 851, 93 L. Ed. 2d 954 (1987) and Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986)). On appeal, this court makes an independent determination of the voluntariness of a confession, but in doing so, we review the totality of the circumstances and will reverse only when the trial court's finding of voluntariness is clearly against the preponderance of the evidence. See Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996); Trull v. State, 322 Ark. 157, 908 S.W.2d 83 (1995). We recognize in our determination ofwhether a trial court's finding is clearly erroneous that conflicts in testimony are for the trial court to resolve. See Jones, supra. Where it is apparent from the record that a statement is not the product of an accused's free and rational choice and where the undisputed evidence makes clear that the accused did not want to talk to police detectives, the Supreme Court has held that due process of law requires that the resulting statement not be used against the accused. Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978). Other factors mentioned in Mincey, in addition to the fact that the accused made repeated requests that the interrogation stop so he could retain a lawyer, were that he was weakened by pain and shock, isolated from family, friends, and legal counsel, and was barely conscious. Under these circumstances the Court held that Mincey's will was overborne and the statement could not be used against him. Id.

In the case at bar, there has been no evidence introduced that the videotaped statement by Sims was anything other than voluntary. Before the statement was made, Sims properly waived his Miranda rights and he freely answered the questions without any coercion. Therefore, the court did not err in allowing the introduction of the inculpatory statement.

3. Sufficiency of the Evidence Sims's counsel concedes that even without Sims's conviction on the rape charge, there is sufficient evidence presented to show that he violated the terms of his suspended sentence. Where the sufficiency of the evidence is challenged on appeal from a criminal conviction, we will affirm if the finding of guilt is supported by substantial evidence. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000). Substantial evidence is evidenceforceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000). In determining the sufficiency of the evidence, we review the proof in the light most favorable to the State, considering only that evidence which tends to support the verdict. Id. The State presented unrebutted testimony that Sims failed to pay court-ordered fines, which constitutes a violation of the terms of his suspended sentence. Therefore, there was sufficient evidence presented to support that Sims violated the terms of his suspended sentence.

4. Penalty

The court sentenced Sims to thirty years on his conviction of delivery of a controlled substance. The relevant Arkansas Code Annotated statute, section 5-64-401(a)(1)(i) (Supp. 2001), states that the convicted person "shall be imprisoned for not less than ten (10) years nor more than forty (40) years, or life." Therefore, the sentence of thirty years falls within this range. Sims was also sentenced to ten years on his conviction of theft of property, classified as a Class "C" felony. Arkansas Code Annotated section 5-4-401(a)(4) (Supp. 2001) provides that the sentence for a Class C felony shall not be less than three years and shall not exceed ten years. Sims's sentence falls within these guidelines. The supreme court has held that an appellant cannot appeal a sentence on the basis that it was excessive if it was within the statutory range. Cupit v. State, 324 Ark. 438, 920 S.W.2d 852 (1996). Because his sentences are within the statutory range, Sims may not complain on appeal that the sentences are excessive. We agree with counsel that this argument has no merit.

Therefore, Sims has no meritorious grounds for an appeal and counsel's motion towithdraw is granted.

Affirmed.

Baker and Crabtree, JJ., agree.