Willie Dion Polk, Jr. v. State of Arkansas

ar01-668

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CACR01-668

July 3, 2002

WILLIE DION POLK, JR. AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT, SIXTH

DIVISION [CR00-128; CR95-3232]

V. HON. DAVID BOGARD, JUDGE

STATE OF ARKANSAS AFFIRMED IN PART;

APPELLEE REVERSED AND REMANDED IN PART

Willie Dion Polk, Jr. appeals from his criminal conviction for failure to register as a sex offender and from the revocation of his probation. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(j), appellant's counsel has filed a no-merit appeal from appellant's criminal conviction, and petitions this court to withdraw as counsel. Counsel's brief analyzes the adverse rulings that might support an appeal, and demonstrates why the appeal is without merit. However, appellant's counsel has also filed a standard appeal from the revocation of appellant's probation, arguing the trial court lacked jurisdiction to conduct a revocation hearing because appellant's sentence had been put into execution.

With regard to the appeal from appellant's criminal conviction, we affirm and grant counsel's request to be relieved. However, the State concedes that the trial court lacked jurisdiction to revoke appellant's probation, and we agree with the State. Therefore, we reverse and remand the order revoking appellant's probation.

In 1997, appellant was convicted of first-degree sexual abuse and sexual misconduct. On June 4, 1997, the trial court sentenced him to serve forty-five days in jail, placed him on five years' probation, and ordered him to pay a $250 fine. Appellant was also required to register as a sex offender with the Arkansas Crime Information Center and the Jacksonville Police Department.

Appellant subsequently pleaded guilty to the State's allegation that he had violated the terms of his probation, and his probation was revoked on March 17, 1998. He was sentenced to serve ninety days in the county jail and to perform fifty hours of community service, was fined $250, and was placed on probation for four years. Appellant later pleaded guilty to another charge that he violated the terms of his probation and his probation was again revoked on January 28, 1998. He was ordered to serve 120 days in the county jail and to perform 100 hours of community service, was fined $500, and was placed on probation for five years.

On September 29, 1999, the State filed a third petition to revoke, based on appellant's failure to register as a sex offender, pursuant to Arkansas Code Annotated section 12-12-904 (Supp. 2001). The criminal trial and the revocation hearing based on the criminal charge were held the same day, on November 13, 2000, in a bifurcated proceeding. The criminalproceeding was conducted first. Without objection, the evidence admitted during the criminal trial was also admitted into evidence during the revocation hearing.

Jessie King, the coordinator for the sex offender registry at the Arkansas Information Crime Center, testified that her agency sends out a verification of residency form to registered sex offenders every six months. She explained that when the offenders receive the form, they have ten days to return the form to the local police department or sheriff's office. The police then are allowed three days to return the form to the Crime Center.

King further testified that appellant's address was shown as 102 Briarfield Cove, Jacksonville, AR 72076. She stated that notifications were sent and received back from appellant as follows: 1) a notice sent on July 20, 1998, was received on July 31, 1998; 2) a notice sent on January 19, 1999, was not received until June 8, 1999; 3) the Center never received a response to a notice sent on July 19, 1999.

Captain Ken Bullion of the Jacksonville Police Department testified that appellant was scheduled to register with his department no later than July 30, 1998, but he did not register until August 27, 1998, and only after Bullion personally went to appellant's home. Bullion further testified that appellant was scheduled to register again no later than January 29, 1999. Appellant failed to do so, but this time, Bullion was unable to locate him. Bullion stated that appellant finally registered on June 8, 1999. Bullion further stated that appellant was again scheduled to register no later than July 29, 1999, but never registered. On approximately October 20, 1999, Bullion mailed a letter to appellant's home, informing him that he had failed to register and requesting that he do so. On December 1, 1999, afterappellant failed to respond, Bullion obtained a warrant for appellant's arrest.

Appellant's counsel made no objections during the presentation of the State's criminal case. After the State rested, appellant's counsel did not file a motion for a directed verdict. Appellant testified in his defense. He stated that he registered with the Jacksonville Police Department in July of 1999. He acknowledged that he received a letter in the mail, but stated that he was unable to read and write, and required assistance from his uncle to fill out the form.

After Polk testified, the defense rested, but again, appellant's counsel did not request a directed verdict. The court found appellant guilty, noting that he did not respond to requests from either the Crime Center or the police department, and further noting that Bullion "made special efforts" to help appellant comply. The court asked both the State and appellant's counsel if they had anything to offer with regard to sentencing but both parties declined to offer any evidence in that regard. The court announced from the bench that it was sentencing appellant to serve six years in the Arkansas Department of Correction.

The State thereafter offered the testimony from appellant's probation officer, who testified that appellant was aware of the terms of his probation, but had failed to report, failed to pay supervisory fees, and failed to perform community work. Appellant testified that he reported every month, that he paid supervision fees, and that he was not aware that he was required to perform community service.

After appellant testified, the court asked if there was anything further from the defense. The defense rested, and the court revoked appellant's probation, noting that "thisis the third time we've been in here with him on a revocation." The court sentenced appellant to serve ten years in the Arkansas Department of Correction, and ordered that his sentence was to run concurrently with the six-year sentence for his criminal conviction.

I. No-Merit Appeal

Pursuant to Anders v. California, supra, and an examination of the proceedings as a whole, it appears that an appeal from appellant's criminal conviction would be wholly frivolous. Appellant's attorney raised no objections, but it appears that there are no objections that his counsel should have raised. First, there was no error in holding the criminal hearing and the revocation hearing nearly simultaneously. Where, as here, a new criminal charge also constitutes the grounds for revocation, it is particularly appropriate to combine the two proceedings, as the goal of judicial economy can be served. See, e.g., White v. State, 329 Ark. 487, 951 S.W.2d 556 (1997). Appellant can demonstrate no prejudice regarding his criminal conviction, which requires a greater burden of proof than revocation, by allowing evidence pertaining to both charges to be heard at the same time. In any event, the evidence offered by appellant's probation officer pertaining to his probation violation was not offered until after the court found appellant guilty of the criminal charge.

Further, although appellant did not file a motion for directed verdict, it appears that substantial evidence supports his conviction. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. See Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001). Evidence issufficient to support a verdict if it is forceful enough to compel a conclusion one way or another. See Curtis v. State, 76 Ark. App. 458, 68 S.W.3d 305 (2002).

Section 12-12-904 provides that a person who fails to register as required under the sex and child offender statutes shall be guilty of a Class D felony. As King testified, appellant was required to return the verification form in person to the Jacksonville Police Department within ten days after receiving the form. See Ark. Code Ann. § 12-12-909 (a)(1)(A)(ii)(a) (Supp. 2001). This statute further provides that it shall be a violation if the offender fails to return the verification form in compliance with the statute. See Ark. Code Ann. § 12-12-909 (a)(1)(A)(iv). The testimony of King and Bullion constituted substantial evidence that appellant violated this statute on two occasions. He did not return the form that was due to be returned on July 30, 1998, until August 27, 1998, and he completely failed to register thereafter.

It appears the only colorable argument that appellant might raise would be a sentencing error, but even this argument is without merit. From the bench, the court announced that appellant's sentence would be six years. However, his judgment and commitment order indicates that he received a three-year sentence. Where there is a discrepancy between the pronouncement of sentence from the bench and the recitation of the sentence in a judgment and commitment order, the pronouncement of sentence from the bench controls. See, e.g., Carmichael v. State, 296 Ark. 479, 757 S.W.2d 944 (1988). A Class D felony is punishable by a sentence not to exceed six years. See Ark. Code Ann. § 5-4-4-1(a)(5)(Repl. 1997). Therefore, appellant's six-year sentence for his criminalconviction was within the statutory range. We affirm appellant's criminal conviction and grant counsel's request to be relieved.

II. Jurisdiction to Revoke

However, we agree with the State that the trial court did not have jurisdiction to revoke appellant's probation. Prior to Act 1569 of 1999, a trial court lost subject matter jurisdiction to modify a probationary sentence once it was put into execution. A sentence is put into execution when the trial court issues a judgment of conviction or a commitment order. See Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995).

Arkansas Code Annotated section 5-4-301(d) (Repl. 1997) provides that when a court places a defendant on probation, the court shall enter a judgment of conviction only if 1) it sentences him to pay a fine and places him on probation or 2) sentences him to a term of imprisonment and suspends imposition of his sentence. Act 1569 of 1999 amended Arkansas Code Annotated section 5-4-301(d) to empower trial courts to modify probationary sentences, within the limits imposed by Arkansas Code Annotated sections 5-4-303 (authorizing the trial court to impose certain conditions of probation), 5-4-304 (authorizing confinement as a condition of probation), and 5-4-306 (setting time limits on the modification of a probationary sentence or suspended sentence). See Ark. Code Ann. § 5-4-301(d) (Supp. 2001). However, in Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001), the Arkansas Supreme Court held that Act 1569 does not apply retroactively, nor does it apply to offenses committed prior to April 15, 1999, the effective date of the Act.

It appears that no objection was raised below to the trial court's lack of jurisdiction. However, because this is an issue of subject matter jurisdiction, the issue may be raised for the first time on appeal. See Bagwell v. State, supra. Here, effective June 4, 1997, prior to the effective date of the Act, appellant was convicted, ordered to serve jail time, fined, and placed on probation. Clearly, the offense was committed and the sentence was put into execution prior to the effective date of the Act. Therefore, pursuant to Bagwell v. State, supra, after June 4, 1997, the trial court lacked jurisdiction to modify appellant's sentence. See also Harmon v. State, 317 Ark. 47, 76 S.W.2d 240 (1994) (reversing and remanding where the trial court lacked jurisdiction to modify defendant's sentence).

However, appellant concedes that the only sentence from which he currently suffers prejudice is the ten-year sentence that was imposed upon the revocation of his probation. Accordingly, we reverse the March 19, 2001 order revoking his probation and ordering him to serve additional jail time and remand to the trial court to reinstate his previous conditions of probation. See Bagwell v. State, supra (reversing and remanding where the trial court lacked jurisdiction to modify defendant's sentence and ordering original suspended sentences and probation to remain in effect).

Affirmed in part; reversed and remanded in part.

Jennings and Neal, JJ., agree.