Sheila Dianne Besly v. State of Arkansas

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November 9, 2005


[NO. CR-2003-362]




John Mauzy Pittman, Chief Judge

The appellant was charged with two counts of possession of a controlled substance, second offense. After a bench trial, she was found guilty on both counts and sentenced to two concurrent terms of twenty-four months' incarceration at a Department of Community Punishment regional facility. On appeal, she challenges the sufficiency of the evidence to support a finding that the crimes were second offenses. We affirm.

Appellant was convicted of possession of marijuana and of possession of clonazepam, a Schedule VI controlled substance. Arkansas Code Annotated § 5-64-401(c) (Supp. 2003) prohibits possession of controlled substances and provides, in pertinent part, that:

It is unlawful for any person to possess a controlled substance or counterfeit substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this chapter. Any person convicted of a first offense for violation of this subsection is guilty of a Class A misdemeanor. Provided any person who is convicted of a second offense for a violation of this subsection is guilty of a Class D felony.

The possession convictions were enhanced to second offenses and Class D felonies based on a finding that she had a prior conviction. This finding was based on a certificate certified by the clerk of the first division Little Rock District Court stating that, on March 15, 1996, appellant pled guilty and was sentenced for "possession of drugs."

Appellant's argument is twofold. First, she asserts that the evidence is insufficient to show that her prior conviction was for violation of Ark. Code. Ann. § 5-64-401. Second, she argues that her prior conviction cannot be used to enhance her sentence because there is no evidence that she was represented by counsel.

It is the appellant's burden to demonstrate error. Urich v. State, 293 Ark. 246, 737 S.W.2d 155 (1987). Appellant is correct in her assertion that the State was required to show that her prior conviction was for a violation of Ark. Code Ann. § 5-64-401. The plain language of the statute makes "a second offense for a violation of this subsection" necessary before a person will be guilty of a Class D felony. See Sossamon v. State, 31 Ark. App. 131, 789 S.W.2d 738 (1990). The question, then, is whether appellant has demonstrated that the certificate from the Little Rock District Court clerk stating that appellant was convicted of "possession of drugs" is not substantial evidence that appellant previously was convicted of a violation of § 5-64-401. We hold that she has not.

Subsection 5-64-401(c) is part of a comprehensive Act that criminalizes the "possession of drugs" of myriad types and classifications as controlled substances. At trial, appellant argued that there were statutes other than subsection 5-64-401(c) that prohibited possession of drugs, giving as an example the statute prohibiting possession of nitrous oxide. However, Ark. Code Ann. § 5-64-1201, which proscribes possession of nitrous oxide or amyl nitrate, was not enacted until 1997, whereas the clerk's certificate stated that appellant's conviction for "possession of drugs" occurred in March 1996. Likewise, Ark. Code Ann. §5-64-1101(a), which makes it illegal to possess more than five grams of ephedrine, was not enacted until 1997. In light of the comprehensive nature of the Arkansas Controlled Substances Act, a main object of which was to create a "coordinated and codified system of drug control . . . which classifies all narcotics, marihuana, and dangerous drugs subject to control," Original Commentary to Ark. Code Ann. § 5-64-101 et seq. (Repl. 1995), and appellant's failure to cite us to any other Arkansas statute criminalizing possession of drugs that was in effect in 1996, we cannot say that the trial court erred. We will not consider an argument where it is not apparent without further research that the argument is well taken. Stivers v. State, 354 Ark. 140, 118 S.W.3d 558 (2003).

Nor do we find merit in appellant's argument that her prior conviction cannot be used to enhance her sentence because there is no evidence that she was represented by counsel in the prior proceeding. Although the specific attorney's name is not listed, the clerk's certificate does in fact indicate that appellant was represented by a public defender at the time of her prior conviction. Insomuch as the prior conviction was in district court, this is adequate to show representation. King v. State, 304 Ark. 592, 804 S.W.2d 360 (1991). In any event, although it is true that the United States Supreme Court held in Baldasar v. Illinois, 446 U.S. 222 (1980), that a constitutionally valid misdemeanor conviction could not be used under an "enhanced penalty statute" to convert a subsequent misdemeanor into a felony with a prison term, the Supreme Court expressly overruled Baldasar in Nichols v. United States, 511 U.S. 738 (1994), a case involving a criminal sentencing point assessed for a prior, uncounseled misdemeanor conviction. See Davis v. State, 330 Ark. 76, 953 S.W.2d 559 (1997).


Gladwin and Glover, JJ., agree.