Wayne Fulcher v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION I

WAYNE FULCHER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-353

March 20, 2002

AN APPEAL FROM PHILLIPS COUNTY CIRCUIT COURT

CR92-299

HONORABLE HARVEY YATES

AFFIRMED

This is a revocation of suspended sentence case in which Wayne Fulcher was sentenced to ten years in the Arkansas Department of Correction for violations of the terms of his 1993 suspended imposition of sentence. On appeal, Fulcher contends that the trial court erred when it failed to grant a continuance and that the trial court erred in failing to conduct a hearing or recommend an evaluation as to his mental state. We disagree and affirm Fulcher's revocation.

After Fulcher was arrested on August 19, 1999, for possession of a firearm, terroristic threatening, and criminal use of a prohibited weapon, the State filed a petition to revoke his ten-year suspended imposition of sentence. During the February 9, 2001, hearing Fulcher's counsel claimed that he had subpoenaed documents from the Social Security Administration Office, which would reflect that Fulcher had been diagnosed with some mental conditions that would be relevant to the hearing, but that representatives of the Social Security Administration Office refused to comply with the subpoena. The court held that it did not have the authority to force compliance with the subpoena and that Fulcher could obtain his own records for admission. Fulcher's counsel thenrequested a continuance which was denied by the court.

After the State admitted certified copies of three municipal court convictions on February 17, 1994, for disorderly conduct, resisting arrest, and obstructing government operations, testimony was heard from Fulcher's ex-wife, Martha Hardnett, the victim, who testified that Fulcher came to her residence and threatened to kill her, her husband, and her children on August 19, 1999. She further stated that Fulcher had what appeared to be a shotgun. Officer Winston Jackson testified that upon responding to the incident, he witnessed Fulcher run from across the street toward Hardnett's house with a gun, and that he saw Fulcher fire the gun which he later identified as being a sawed-off shotgun.

The trial court found that the three municipal court convictions were violations of Fulcher's suspended imposition of sentence, and it further found that Fulcher possessed a firearm, committed terroristic threatening, and criminal use of a prohibited weapon, which also violated the grounds of his suspended imposition of sentence. The trial court then sentenced Fulcher to ten years in the Arkansas Department of Correction.

Fulcher first argues that his due process rights were violated and that the trial court abused its discretion when it failed to grant his request for continuance. Specifically, he contends that his counsel exercised due diligence in sending the subpoena in order to obtain evidence of his mental state and that he sought a continuance merely to secure enough time to obtain the necessary documents that his counsel had expected to be produced on the day of trial. The State claims that since the petition to revoke was filed on November 8, 1999, Fulcher had more than enough time to secure the documents, and his failure to do so shows a lack of diligence, which is a ground sufficient to deny a motion for continuance.

The grant or denial of a motion for continuance is within the sound discretion of the trialcourt, and this court will not reverse unless there is a showing of an abuse of discretion. Dyer v. State, 343 Ark. 422, 36 S.W.3d 724 (2001); Kilgore v. State, 313 Ark. 198, 852 S.W.2d 810 (1993). On appeal, an appellant must not only demonstrate that the trial court abused its discretion by denying the motion for a continuance, but also show prejudice that amounts to a denial of justice. Anthony v. State, 339 Ark. 22, 2 S.W.3d 780 (1999). In deciding whether to grant or deny a motion for a continuance, the trial court should consider the movant's diligence and the probable effect of the testimony at trial, among other considerations. Id. The trial court shall grant a continuance only upon a showing of good cause and only for so long as is necessary. Ark. R. Crim. P. 27.3 (2001). A lack of diligence alone is a sufficient basis to deny a motion for a continuance. Anthony, supra.

Here, as noted by the State, the petition for revocation was filed on November 8, 1999, and the revocation hearing was initially set for December 6, 1999. However, Fulcher failed to appear, and the matter was rescheduled for January 4, 2001. The revocation hearing took place on February 9, 2001, and as such, Fulcher and his counsel had fifteen months to secure the necessary documents from the Social Security Administration Office. We cannot say that the trial court abused its discretion or that Fulcher has shown any prejudice that amounted to a denial of justice.

Fulcher next contends that the trial court erred in failing to order a mental evaluation because the court was put on notice that his mental condition would be in issue. The State claims that Fulcher's point is barred because he did not request any relief from the trial court, or in the alternative, that the trial court did not err in failing to order a mental evaluation because Arkansas Code Annotated section 5-2-305 simply does not apply in revocation proceedings.

Arkansas Code Annotated Section 5-2-305 (Repl. 1997) provides that whenever a defendant charged in circuit court files notice that there is reason to believe that mental disease or defect of the defendant will or has become an issue in the cause, the court shall immediately suspend all furtherproceedings and enter an order directing the defendant undergo examination and observation by one or more psychiatrists. However, in Pyland v. State, 302 Ark. 444, 790 S.W.2d 178 (1990), the supreme court held that Ark. Code Ann. § 5-2-305 is inapplicable in revocation hearings because a hearing on sentence revocation is not a hearing on a charge as contemplated by the language, "charged in circuit court." Although defendants must be afforded due process in revocation proceedings, "there is no entitlement to the full range of criminal safeguards because the court is not dealing with a person who had yet to be convicted of anything." Pyland, at 446, 790 S.W.2d at 179. Because Arkansas Code Annotated section 5-2-305 is not applicable in revocation proceedings and Fulcher has failed to cite any law to the contrary, his argument that the trial court erred in failing to order a mental evaluation or hearing on the issue of his mental state is without merit. Consequently, we affirm the revocation of Fulcher's suspended imposition of sentence.

Affirmed.

Bird and Vaught, JJ., agree.