Darrell J. Tillery v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION I

DARRELL J. TILLERY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-922

July 3, 2002

APPEAL FROM THE GARLAND

COUNTY CIRCUIT COURT

[CR200-206 II]

HONORABLE TOM SMITHERMAN, JR., CIRCUIT JUDGE

AFFIRMED

Darrell Justin Tillery pleaded guilty to battery in the first degree of an eighteen-month-old child in Garland County Circuit Court. In accordance with Ark. Code Ann. § 16-97-101(6) (Supp. 2001), his sentence was determined by a jury impaneled for that purpose only. The jury sentenced appellant to twenty years in the Arkansas Department of Correction and ordered him to pay a $15,000 fine. An appeal is permissible after a guilty plea is entered when a jury sets punishment under this statutory procedure. See Hampton v. State, 48 Ark. App. 93, 890 S.W.2d 279 (1995) (citing Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994)).

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Arkansas Rules of the Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the grounds that the appeal is without merit. Counsel's motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, including a list of all rulings adverse to appellant made by the trial court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. The clerk of this court furnished appellant with a copy of his counsel's brief and notified him of his right to file pro se points on appeal. Appellant has filed points for appeal, and the State has filed a brief in response to appellant's pro se points contending that none of appellant's points are meritorious.

Counsel for appellant briefed two adverse rulings found in the record. The first adverse ruling pertained to the State's introduction of a photograph, over appellant's objection, of the eighteen-month-old victim prior to the battery. A trial judge is given broad discretion in evidentiary rulings and will not be reversed on such issues absent a manifest abuse of discretion. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), cert. denied, 519 U.S. 898 (1996). We cannot hold that the admission of this picture was an abuse of the trial judge's discretion.

The other adverse ruling briefed by appellant's counsel was the trial court's refusal to instruct the jury on the alternative sentence of probation. The decision to give an instruction on an alternative sentence is within the trial court's discretion. Ark. Code Ann. § 16-97-101(4) (Supp. 2001). Furthermore, even if the jury recommends probation, the trial court is not bound by that recommendation. Id. The trial judge's decision will only be reversed for an abuse of discretion. See Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000). In this case, the trial judge made it clear that he did not believe that probation was a proper sentence and would not sentence appellant to probation. Given the severity of theyoung child's injuries, the trial judge's decision not to instruct the jury on the alternative sentence of probation was not an abuse of discretion.

Appellant filed seven pro se points for appeal: (1) the judge would not let the jury consider probation or a suspended sentence; (2) a member of the jury stated that he was friends with the victim's grandfather but the trial continued; (3) the victim was not present at the trial so that the jury could see how she has recovered; (4) the "main" doctor at the trial was the victim's pediatrician; (5) appellant's lawyer did not inform him that he could plead guilty and be sentenced by the trial judge; (6) the jury was instructed on conditions for eligibility of appellant to be transferred to the Department of Community Punishment; (7) appellant's attorney was probably under the influence of crack cocaine.

None of appellant's points are meritorious. Point one, that the trial judge erred by refusing to allow the jury to consider alternative sentences, is fully discussed above. With regard to point two, that a member of the jury panel was acquainted with the victim's grandfather, when this information was brought out after the jury had been seated, the trial judge asked both the State and appellant if they wished to voir dire the venire person, and both sides declined the offer. Appellant offered no objection below to the person remaining on the jury; consequently, such an argument was not preserved for appellate review. With regard to point three, no request was made for the victim of appellant's crime to appear in the courtroom; the State informed the trial judge prior to the sentencing hearing that the custodial grandparents were not comfortable with the victim being in the courtroom, and there was no objection by the defense. With regard to appellant's fourth assertion, that therewas some error in allowing the victim's pediatrician to testify with regard to the victim's injuries, no such objection was made to the trial court. This court does not consider arguments raised for the first time on appeal. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001).

To the extent that points five and seven can be taken as arguments for ineffective assistance of counsel, there is no indication that appellant raised these arguments below, and these arguments cannot be addressed for the first time on appeal. Nichols v. State, 69 Ark. App. 212, 11 S.W.3d 19 (2000). In order for a defendant to argue ineffective assistance of counsel on direct appeal, he must first have presented the claim to the lower court either during the trial or in a motion for new trial. Id.

Lastly, it was not error for the trial judge to instruct the jury on the conditions for eligibility of appellant to be transferred to the Department of Community Punishment. During the punishment phase, the jury may consider the law applicable to parole, meritorious good time, or transfer. Ark. Code Ann. § 16-97-103(1) (Supp. 2001).

From a review of the record and the brief presented to this court, appellant's counsel has complied with the requirements of Rule 4-3(j) of the Arkansas Rules of the Supreme Court and the Court of Appeals, and the appeal is without merit. Counsel's motion to be relieved is granted, and appellant's conviction is affirmed.

Affirmed.

Bird and Crabtree, JJ., agree.