Anthony Graves v. State of Arkansas

Annotate this Case
ar01-343

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION IV

ANTHONY GRAVES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-343

April 30, 2003

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT

[NOS. CR-95-606, CR-95-784A]

HON. JOHN N. FOGLEMAN,

JUDGE

AFFIRMED

The appellant in this criminal case entered pleas of nolo contendere to charges of commercial burglary and delivery of cocaine in January 1996, receiving a ten-year sentence with six years suspended on the burglary charge, and a ten-year suspended imposition of sentence for the controlled substance charge. In September 2000, after his release from the Arkansas Department of Correction, appellant took several items, including a thirty-pack of beer, from a West Memphis convenience store and walked out without paying. The store clerk called out to appellant as he walked out, but appellant did not respond. The clerk summoned the police, and appellant was within minutes arrested, intoxicated on the street near the thirty-pack of beer. The State filed a petition to revoke appellant's suspensions, alleging that he violated the conditions thereof in several particulars, including theft of

property, use and possession of alcohol, and public intoxication. After a hearing, the trial court found that appellant had violated the terms and conditions of his suspensions, and sentenced him to terms of five years for commercial burglary and twenty-five years for delivery of cocaine. Appellant did not object to the sentences imposed. From that decision, comes this appeal.

On appeal, appellant concedes that there is substantial evidence to support the revocation of his suspensions and that the five-year sentence for commercial burglary was not improper, but argues that the twenty-five year sentence imposed by the court for delivery of cocaine was excessive in that the evidence of aggravating factors adduced at the hearing does not support a departure from the presumptive sentencing standards1. We cannot address this argument because it is not preserved for appeal.

Although it is true that there is no need for an objection below to preserve the issue of evidentiary sufficiency in a revocation case, see Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001), the issue raised in the present appeal contests the sentence imposed rather than the sufficiency of the evidence that the conditions of appellant's suspensions had been violated. The appellant in Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997), also argued for the first time on appeal that the trial court erred in departing from the sentencing grid. The supreme court refused to address the issue, stating that:

We will not consider an argument contesting the sentence if the appellant, even though present during the sentencing phase, failed to voice to the Trial Court his objection to the sentence. Whitney v. State, 326 Ark. 206, 930 S.W.2d 343 (1996); Reece v. State, 325 Ark. 465, 928 S.W.2d 334 (1996). A defendant who makes no objection at the time sentence is imposed has no standing to complain of it. Williams v. State, 303 Ark. 193, 794 S.W.2d 618 (1990); McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980).

Ladwig v. State, 328 Ark. at 246, 943 S.W.2d at 574; see also Mackey v. State, 329 Ark. 229, 947 S.W.2d 359 (1997).

Affirmed.

Neal and Roaf, JJ., agree.

1 We note that, at the time of the offense in the present case, the statutory range of punishment for delivery of cocaine was ten to forty years, or life imprisonment. See Ark. Code Ann. ยง 5-64-401(a)(1) (Supp. 1995).

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