Billy James Williams v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
 

DIVISION III

BILLY JAMES WILLIAMS

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR03-70

JANUARY 7, 2004

APPEAL FROM THE WHITE COUNTY CIRCUIT COURT

[CR2002-191]

HONORABLE ROBERT EDWARDS, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellant, Billy James Williams, was charged with delivery of a controlled substance, cocaine. At trial, the jury voir dire was conducted, with the State and appellant approving each member of the jury panel, after which, the panel was sworn in by the trial court. Thereafter, the trial court met with appellant's attorney and the prosecuting attorney, off the record in chambers during a recess. When the trial court reconvened, the trial court related, outside the hearing of the jury, that during the recess appellant's attorney attempted to raise a challenge under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), concerning the State's excusal of prospective juror Turner. The trial court recounted that it ruled the Batson challenge was untimely. The trial was held, and the jury found appellant guilty of possessing approximately .209 grams of crack cocaine. Appellant received a twenty-five (25) year sentence. On appeal, appellant reasserts his Batson challenge and also argues that the sentence imposed upon him was disproportionate and cruel and unusual and therefore violates the 8th Amendment of the United States Constitution. We find no error and affirm.

For his first point, appellant asserts that the circuit court erred in rejecting his Batson challenge. See Batson v. Kentucky, 476 U.S. 79 (1986). Appellant is an African-American. Two African-Americans

were members of the jury pool from which the jury was selected. One panel member was excused for cause by the trial court because he stated that he and appellant lived in the same neighborhood, that he knew appellant personally, and that he did not believe he could be impartial. Appellant did not object to the excusal of this panel member. Mr. Turner was the only other African-American on the panel.

We will reverse a circuit court's Batson findings only when they are clearly against the preponderance of the evidence. Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). The circumstances of this case do not show that the circuit court clearly erred. A Batson challenge is timely so long as it is made before the jury is sworn. E.g., Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000). Appellant did not make his Batson challenge until after the jury was sworn. Therefore, the trial court did not err in denying the challenge.

For his second point, appellant asserts that the sentence imposed upon him was disproportionate and cruel and unusual and therefore violates the 8th Amendment of the United States Constitution. It is the court's function to impose a sentence, and it is the court's obligation to exercise its discretion in the imposition of that sentence. See Rodgers v. State, 348 Ark. 106, 71 S.W.3d 579 (2002); Blagg v. State 72 Ark. App. 32, 31 S.W.3d 872 (2000). A trial court may reduce the extent or duration of the punishment assessed by the jury if, in the judge's opinion, the conviction is proper but the punishment assessed is still greater than, under the circumstances of the case, ought to be inflicted, as long as the punishment is not reduced below the limit prescribed by the law. Richards, 309 Ark. at 134, 827 S.W.2d at 156; Ark. Code Ann. § 16-90-107(e) (1987). Appellant was convicted of delivery of a controlled substance, cocaine, in violation of Ark. Code Ann. § 5-64-401 (Supp. 2001), a Class Y felony, and was sentenced to twenty-five years' imprisonment. Pursuant to Ark. Code Ann. § 5-4-401 (a) (Repl. 1997), the sentence for a Class Y felony "shall not be less than ten (10) years and not more than forty (40) years, or life[.]" Appellant argues that this sentence is disproportionately cruel and unusual citing, Henderson v. Norris, 258 F.3d 706 (8th Cir. 2001). He asserts that he delivered a relatively small amount of cocaine, 0.209 grams, to a law enforcement officer and when the court considers the severity of the offense, the harm caused or threatened to society and the culpability and degree of involvement of the appellant, that the harshness of the penalty shocks the conscience. His argument rests heavily on the fact that the provision for 10-40 years imprisonment is for delivery of up to 28 ounces of cocaine. He also suggests that the sentencing guidelines are more lenient and should have been applied.

First, the sentencing guidelines apply only to nonjury trials; therefore, the sentencing guidelines did not apply in this case where the jury fixed punishment and the judge imposed a sentence within the statutory range. See Pickett v. State, 321 Ark. 224, 902 S.W.2d 208 (1995). Second in Williams v. State, 320 Ark. 498, 898 S.W.2d 38 (1995), the court explained that except for death penalty cases, "[i]f the sentence fixed by the trial court is within the limits set by the legislature, [appellate courts] are not at liberty to reduce it even though [the appellate courts] might think it unduly harsh." Eg., id. at 500, 898 S.W.2d at 39. Three extremely narrow exceptions to this general statement exist: "where the punishment resulted from passion or prejudice, or was a clear abuse of the jury's discretion, or ... was so wholly disproportionate to the nature of the offense as to shock the moral sense of the community." Id. In the case before us, the jury fixed a mid-range sentence for the offense. We find it was not an abuse of discretion for the judge to impose that sentence.

Accordingly, we affirm.

Hart and Neal, JJ., agree.