Jimmy Dale Phillips v. State of Arkansas

Annotate this Case
ar03-526

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

JIMMY DALE PHILLIPS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-526

June 30, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[CR 02-2249]

HON. JOHN W. LANGSTON, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

On July 2, 2002, the State filed a three-count information against appellant Jimmy Dale Phillips, charging him with (1) residential burglary, a Class B felony, (2) theft of property with a value of $500 or less, a Class A misdemeanor, and (3) fleeing, a Class C misdemeanor, all of which occurred on May 31, 2002. In the information, the State also alleged that appellant was a habitual offender with four or more prior felony convictions, as defined in Ark. Code Ann. § 5-4-501(b) (Supp. 2001). Appellant was tried before a circuit judge in Pulaski County on September 20, 2002, at which time he was found guilty as charged. The State then introduced documentary proof that appellant had three prior felony convictions.

At the sentencing hearing held on October 9, 2002, the circuit judge sentenced appellant, as a habitual offender with three prior felony convictions, to thirty years' imprisonment. Although the circuit judge did not specifically so state, it is presumed that the sentence was for the Class B felony of residential burglary. No sentences were pronounced for the two misdemeanor convictions. On October 19, 2002, a judgment and commitment order was entered against appellant, committing him to serve thirty years for having committed residential burglary, as well as thirty days' incarceration in the county jail for having committed the misdemeanor offense of fleeing. The order noted that the conviction for the misdemeanor theft of property was merged. Appellant filed his notice of appeal on November 12, 2002.

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 without merit. Counsel's motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, together with a list of adverse rulings, and a record of all motions and requests made by the appellant, and denied by the court, and a statement of the reasons why counsel considers there to be nothing in the record that will support the appeal. Appellant was provided with a copy of his counsel's brief and was notified of his right to file points for reversal within thirty days. He filed pro se points pursuant to Ark. Sup. Ct. R. 4-3(j)(2) (2003), and the State filed a brief responding to his arguments.

We first address the matters raised in counsel's no-merit brief. There were two rulings by the circuit court that were adverse to appellant, specifically, the denials of his motions to dismiss. Additionally, there were two errors with regard to sentencing. Appellant made the motions to dismiss at the appropriate times as required by Ark. R. Crim. P. 33.1. At the close of the State's case, appellant moved to dismiss the residential burglary charge on three separate bases: (1) that the State had failed to prove beyond a reasonable doubt that appellant did not have permission to enter Denisha Adams's residence, which was her mother's house; (2) that Ms. Adams's in-court identification of appellant was not credible because she had seen him entering the house by seeing his reflection in a mirror; (3) that the State failed to introduce fingerprint evidence or the result of DNA testing to establish appellant's guilt. Appellant renewed his motion after the defense rested, based on basis (2) above and because he had presented exculpatory evidence.

As to the first basis, Ms. Adams's testimony was sufficient to establish the conduct required for residential burglary, namely that appellant "entered or remain[ed] unlawfully" without license or privilege to do so. See Ark. Code Ann. § 5-39-201(a)(1). Additionally, appellant's flight from the residence in order to avoid arrest is circumstantial evidence that he believed he had no license or privilege to enter the residence. One police officer who eventually arrested appellant testified that when he saw appellant running away he identified himself as a police officer and ordered appellant to stop, but appellant continued to run. Flight following the commission of an offense is a factor that may be considered with other evidence in determining probable guilt. Alexander v. State, 78 Ark. App. 56, 77 S.W.3d 544 (2002). Additionally, on cross-examination, appellant admitted that he did not have permission to be in the residence, therefore any argument concerning this issue would have no merit.

As to the in-court identification issue, the credibility of a witnesses's in-court identification of a defendant as the guilty party is a matter for the trier-of-fact to determine. See Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). Regarding the lack of fingerprint evidence or DNA test results, the State was not required to introduce such evidence to prove appellant's guilt. The testimony of a single eyewitness can constitute substantial evidence of a defendant's guilt. Id. In this case, the testimony from three witnesses presented by the State was more than sufficient to support the denials. Finally, regardless of any alleged testimony provided by appellant, the circuit judge, as the trier-of-fact in this case, was not required to believe his testimony. See Cherry v. State, 79 Ark. App. 274, 86 S.W.3d 407 (2002).

As to the two errors made by the circuit court during sentencing, we are persuaded that they were harmless. First, the circuit judge found that appellant had, for habitual sentencing purposes, three prior felony convictions. In fact, the State proved only that appellant had two prior felony convictions. The State introduced State's Exhibit No. 1 as documentary evidence that appellant had a prior conviction for residential burglary in Pulaski County Circuit Court Case No. CR 94-836. Additionally, the State introduced State's Exhibit No. 2 showing convictions for felony offenses of burglary and theft of property in Pulaski County Circuit Court Case No. CR 90-1132; however, pursuant to Ark. Code Ann. § 5-4-501(e)(1), this amounted to proof of one conviction rather than two. This violation of the rule was harmless because the State had only to prove that appellant had at least two prior felony convictions, which it did. Because appellant had the minimum threshold number of prior felony convictions, he could be sentenced as a habitual offender.

The judgment and commitment order entered against appellant recited that he was to serve thirty days in the county jail on the misdemeanor fleeing conviction; however, at the time the circuit judge pronounced appellant's sentence from the bench no sentence was imposed for that conviction. When there is a conflict between the contents of a judgment and commitment order and the oral pronouncement of a sentence, the latter controls. Timmons v. State, 81 Ark. App. 219, 100 S.W.3d 52 ( 2003). The error was harmless because pursuant to Ark. Code Ann. § 5-4-403(c)(1), a sentence of incarceration for a misdemeanor is satisfied by the service of a sentence of imprisonment for a felony, if both sentences were imposed at the same time by the same court. Therefore any sentence imposed for the misdemeanor offense of fleeing is satisfied by his service of the thirty-year sentence imposed for the felony offense of residential burglary.

Appellant asserts in his pro se points that: (1) there were discrepancies in the testimony of various officers; (2) his court-appointed attorneys did not communicate or correspond with him; (3) his post-conviction request for "respectable rehabilitation" was denied and the correction facility has failed to provide him with mental health treatment; (4) the sentence and judgment were harsh. All four points asserted by appellant are without merit.

As to appellant's first point, such inconsistencies in the testimony of the police officers do not provide a basis for relief on appeal. See Harmon v. State, supra. Moreover, even without testimony from any of the officers, Ms. Adams's eyewitness testimony alone was sufficient to sustain the convictions. Similarly, appellant's "common-sense challenge" to the officers' testimony regarding the sequence of events is a matter of credibility that rests with the circuit judge as the finder of fact in this case. See Lenoir v. State, 77 Ark. App. 250, 72 S.W.3d 899 (2002).

We will not review appellant's ineffective-assistance-of-counsel claim because he raised no such challenge at the trial court level. Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003), cert. denied, 124 S. Ct. 832 (U.S. Ark. Dec. 01, 2003) (NO. 03-508). In the absence of any record of his claims, we have nothing upon which to evaluate his allegations.

Next, appellant complains that during his post-conviction incarceration he should receive medical attention, specifically in the form of mental health treatment and drug-treatment programs to alleviate the "mental problem or effect" brought on by his use of illegal narcotics. Claims for post-conviction medical attention or "respectable rehabilitation" are matters to be raised in a petition for post-conviction relief and are not cognizable on direct appeal. See Ark. R. App. P.--Crim. 1 (2003).

Finally, appellant contends that his punishment was harsh when compared to other violent crimes committed by other individuals. This issue was not preserved for our review, as the record fails to reflect any sentence against which appellant wishes to compare his own. We may not take judicial notice of the trial record in a separate case. Baxter v. State, 324 Ark. 440, 922 S.W.2d 682 (1996).

From our review of the record and counsel's brief, we conclude that there has been full compliance with Ark. Sup. Ct. R. 4-3(j) and that none of the rulings adverse to appellant provide a meritorious ground for reversal. Consequently, we grant counsel's request to be relieved and affirm appellant's conviction.

Affirmed.

Baker and Roaf, JJ., agree.