Jimmy Rowe v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

JIMMY ROWE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-522

June 30, 2004

APPEAL FROM THE GARLAND

COUNTY CIRCUIT COURT

[CR-02-95, CR-02-487]

HONORABLE EDWARD T.

SMITHERMAN, JR, CIRCUIT JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

Appellant, Jimmy Rowe, was charged, inter alia, as a habitual offender with the offenses of aggravated robbery in case number CR2002-95 and robbery in case number CR2002-487. These two offenses were joined for trial, but retained their separate case numbers. Another separate count from case number CR2002-95, which is not related to the instant appeal, was severed and set for a later trial date. After the jury was seated, but before the State presented its case, appellant changed his plea from not guilty to guilty with respect to both offenses. The jury heard sentencing evidence, and appellant received forty years on the aggravated- robbery charge and fifteen years on the robbery charge, with the sentences to run concurrently. This appeal followed.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the ground that this appeal is wholly without merit. The motion was accompanied by a brief purportedly discussing all matters in the record that might arguably support an appeal, which involved six adverse rulings by the trial court, and a statement as to why counsel considered them to be incapable of supporting a meritorious appeal. Appellant was provided with a copy of his counsel's brief and notified of his right to file a list of points on appeal within thirty days. Appellant has filed those points, and the State has responded. We affirm Rowe's convictions and grant his counsel's motion to withdraw.

Adverse Rulings

The six adverse rulings were: 1) sustaining the State's relevance objection to a defense question during a Denno hearing; 2) finding appellant's custodial statement to be voluntary and admissible; 3) finding appellant's spontaneous statement to a police officer to be voluntary, unsolicited, and admissible; 4) denying appellant's request to dismiss his attorney; 5) denying appellant's challenge to a prospective juror during voir dire; 6) overruling appellant's objection to one of three prior convictions based upon the fact that the judgment was not signed by counsel representing appellant. We agree with appellant's counsel that an appeal of any of these rulings would be wholly without merit.

The terms of appellant's plea and waiver included the following:

5. That, by entering a plea of guilty herein, he/she waives and gives up (a) his/her right to persist in a plea of not guilty, (b) his/her right to remain silent and not to testify against himself/herself, (c) his/her right to be confronted with witnesses against him/her and to cross-examine such witnesses under oath, (d) his/her right to compel witnesses to testify in his/her behalf, (e) his/her right to a jury trial to determine his/her guilt, (f) his/her right to appeal his/her conviction herein and (g) any and all objections to the proceedings herein against him/her.

6. That he/she acknowledges (a) that he/she is satisfied with the advice given him/her by his/her attorney, (b) that his/her attorney acted diligently and competently in representing him/her herein and (c) that the Court is not bound by any recommendation, if any, made by the Prosecuting Attorney or by the Probation Officer and is completely free to fix or assess such punishment as in the Court's discretion seems appropriate subject only to the maximum sentence prescribed by law.

(Emphasis added.) Each paragraph of the document was initialed by appellant and his signature appears at the end. Consequently, it is not necessary to address the first four adverse rulings because they occurred prior to appellant entering his guilty plea and were thereby waived by the terms of the plea and waiver.

The fifth adverse ruling, which denied appellant's challenge to a prospective juror, Steve Brashears, also occurred prior to appellant entering his guilty plea. However, since the same jury heard the sentencing evidence, we will address the merits of the challenge. The ruling provides no basis for reversal. Appellant cannot establish prejudice related to this ruling because the juror strike list demonstrates that the State exercised one of its challenges against Mr. Brashears.

The final adverse ruling, which overruled appellant's objection to one of three prior Ohio convictions, is also wholly without merit. The State has the burden of proving a defendant's prior convictions for purposes of sentence enhancement. Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997). Moreover, a prior conviction cannot be used to enhance punishment unless the defendant was represented by counsel or validly waived counsel. Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994). Arkansas Code Annotated section 5-4-504 (Repl. 1997) provides in pertinent part:

(a) A previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was convicted or found guilty.

(b) The following are sufficient to support a finding of a prior conviction or finding of guilt:

(1) A certified copy of the record of a previous conviction or finding of guilt by a court of record[.]

On appeal, the test is whether there is substantial evidence that the defendant was previously convicted of the felony in question. Mulkey, supra.

Appellant's argument below was directed to the fact that a Huron County, Ohio, judgment, supporting one of the three prior convictions, had a signature line for the defense counsel that was left blank. Appellant contended below that the lack of endorsement rendered it insufficient. We disagree.

The State's exhibit supporting the conviction included a document entitled, "Judgment Entry," Case No. 89-CR-166, which was entered November 22, 1989. It provided, "Present were the defendant and his counsel, James Schoren, and Assistant County Prosecutor Keys, representing the State." On the same page as the certification of this document, there is, as appellant argues, a blank signature line for defense counsel. The second certified "Judgment Entry" associated with Case No. CR-89-166, which was also included in the State's exhibit, provided that "[t]his matter came on for sentencing on December 15, 1989. Present were the defendant and his counsel, Attorney James Schoren, and Assistant Prosecutor Keys for the State of Ohio." There was no signature line for defense counsel on this document, and he did not sign.

We find that these documents were sufficient to show that appellant had a prior conviction in Case No. CR-89-166 and that he was represented by counsel, despite the fact that his counsel did not actually sign the documents. The requirement is that the defendant be represented, not that his counsel sign the judgment. See Byrum v. State, supra.

Appellant's Points

Appellant raises the following pro se points for reversal: 1) that his counsel lied to him by allegedly asserting that he would not give up any of his rights if he pleaded guilty; 2) that his paperwork stated that he was convicted by a jury, when he was not - he pleaded guilty and was sentenced by the jury; 3) (a) that his counsel filed the appeal without the paperwork related to the aggravated-robbery conviction, and (b) that there was no proof of three prior felony convictions; 4) (a) that there was no paper work about appellant asking the arresting officers for an attorney, and (b) that his counsel was ineffective. We find that these points are also wholly without merit.

1) Lies about giving up rights. The plea and waiver signed by appellant specifically alerted him to the fact that he was giving up certain rights by pleading guilty. In addition to signing the document, appellant initialed each paragraph. Moreover, the record demonstrates that the trial judge reviewed the terms of the plea and waiver with appellant.

2) Clerical Errors. The State acknowledges, and we agree, that the judgments erroneously state that appellant was convicted by a jury, when in fact he pleaded guilty. However, such an error amounts to a clerical error and provides no basis for reversal. 3) (a) Aggravated-Robbery paperwork. Appellant contends, "Mr. Becker has filed this appeal without all the paperwork. There is nothing in this appeal about the aggravated-robbery charge." Appellant provides us with nothing more to explain what is missing and how it supports a reversal, much less how he can appeal on that basis in light of his guilty plea. Consequently, we find no basis for reversal in this point.

(b) No proof of three prior convictions. The only prior conviction that was challenged below has already been discussed at length under the adverse-rulings section of this opinion. Any challenge to the other two prior convictions would be barred because no objection was raised below.

4) (a) No paperwork regarding asking arresting officers for an attorney. Under this point, appellant contends that "[t]here is no paperwork about my asking the arresting officers for an attorney. I wouldn't even give my name, officers had to get my I.D. to identify me." It is not at all clear what appellant's argument is with respect to this point, but it is difficult to see how he can use it as a basis for appeal when he gave up his right of appeal by pleading guilty. He did not enter a conditional plea. He pleaded guilty to both charges.

As explained by our supreme court in Bradford v. State, 351 Ark. 394, 399, 94 S.W.3d 904, 907 (2003):

Arkansas Rule of Appellate Procedure - Criminal 1(a) reads that "[e]xcept as provided in by ARCrP 24.3(b) there shall be no appeal from a plea of guilty[.]"Ark. R. App. P. - Crim. 1(a). This court has endorsed that principle on several occasions. See, e.g., Reeves v. State, 339 Ark. 304, 5 S.W.3d 41 (1999). However, this court has also approved two additional exceptions to this rule, as outlined in our decision in Reeves v. State, supra. Those exceptions are: (1) an appeal relating to an issue involving testimony or evidence which occurred during a sentencing trial before a jury following a guilty plea; and (2) an appeal from a post judgment motion to amend an incorrect or illegal sentence following a guilty plea. See id.

To the extent that appellant contends that he was denied his right to counsel before giving his statement, his argument does not fall within the exceptions cited above. He waived any such argument when he pleaded guilty. To the extent that he contends that it was error to allow his statements to be admitted during the sentencing phase because he was denied counsel, he did not preserve the argument by raising it below during the sentencing phase. Either way, this point is wholly without merit.

(b) Ineffective assistance of counsel. While it is true that appellant asked the trial court to dismiss his counsel and that the trial court denied those requests, the requests were made prior to the entry of appellant's guilty plea. Again, as part of his plea and waiver appellant asserted that he was satisfied with his counsel's representation, and no further assertions of ineffectiveness were made during the sentencing phase. Consequently, appellant is barred from raising such an issue on appeal.

Based upon our review of the record and the briefs presented, we conclude that there has been sufficient compliance with Rule 4-3(j) and that an appeal of Rowe's convictions would be wholly without merit. Counsel's motion to be relieved is granted and the judgment is affirmed.

Affirmed.

Neal and Crabtree, JJ., agree.