James Sherman Johnson v. State of Arkansas

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar05-205

DIVISION II

CACR 05-205

October 12, 2005

JAMES SHERMAN JOHNSON APPEAL FROM CRAWFORD COUNTY

CIRCUIT COURT

APPELLANT NO. CR 2004-432

V.

HONORABLE MICHAEL MEDLOCK

STATE OF ARKANSAS CIRCUIT JUDGE

APPELLEE AFFIRMED

Andree Layton Roaf, Judge

Appellant James Sherman Johnson was sentenced by a jury to two twenty-year terms of imprisonment after pleading guilty to two counts of second-degree forgery. The sentences were run consecutively for a total sentence of forty years' imprisonment. Johnson challenges his sentence, arguing that the trial court erred when it allowed evidence of two prior convictions to be admitted into evidence for the purpose of enhancing his sentence. We affirm.

Johnson was charged with two counts of second-degree forgery as an habitual offender. On December 23, 2004, he pled guilty to both counts. During Johnson's sentencing, after reviewing the certified copy of a 2003 judgment, the trial court informed the jury, for purposes of sentence enhancement, that Johnson had two prior felony convictions from 2003. Johnson objected to the jury being told about the 2003 convictions because the judgment and commitment order stated that the plea was conditioned upon the filing of a drug report from the crime lab and, according to Johnson, the drug report was never filed. The trial court allowed Johnson to testify about the purported conditional plea. Upon the recommendation of the jury, Johnson was sentenced as a habitual offender to twenty years' imprisonment for each count of second-degree forgery to be served consecutively.

Forgery in the second degree is a Class C Felony. Ark. Code Ann. § 5-37-201 (Repl. 1997). The sentencing range for a Class C Felony is three to ten years. Ark. Code Ann. § 5-4-401 (Repl. 1997). The sentencing range for a Class C Felony for one who has been convicted of more than one but fewer than four felonies is three to twenty years. Ark. Code Ann. § 5-4-501(a)(2)(D) (Supp. 2003).

Johnson's only point on appeal is that the trial court erred by allowing evidence of a judgment showing two 2003 felony convictions because the judgment reflected a conditional plea and the condition had not been met. There is a presumption of regularity attendant upon every judgment of a court of competent jurisdiction. Bramucci v. State, 76 Ark. App. 8, 62 S.W.3d 10 (2001) (citing Coleman v. State, 257 Ark. 538, 518 S.W.2d 487 (1975)). This strong presumption applies to criminal convictions and sentences, which entitles them to every reasonable intendment in their favor. Id., 62 S.W.3d 10. Absent a contradictory showing, a presumption arises when a sentence is pronounced that the circuit court did its duty according to the statutes unless the court's failure to do so appears on the face of the judgment. Id., 62 S.W.3d 10.

As a general rule, a defendant who does not appeal a criminal conviction must be barred from collaterally attacking a judgment. King v. State, 304 Ark. 592, 804 S.W.2d 360 (1991). A collateral attack on a judgment occurs when one seeks to deprive it of its normal force and effect in a proceeding that had an independent purpose other than to overturn the prior judgment. Parke v. Raley, 506 U.S. 20 (1992).

Here, Johnson is attempting to collaterally attack his 2003 judgment and commitment order. The 2003 convictions had not been set aside by direct appeal or collateral review, and therefore they are presumptively valid to enhance Johnson's 2004 sentence. See Bramucci, supra. Johnson is barred from collaterally attacking the 2003 judgment.

Here, Johnson seems to argue that the judgment is void because it purports to have allowed Johnson to enter a conditional plea of guilty conditioned on the results of a crime labreport. Johnson asserts that this crime lab report was never filed. Arkansas Rule of Criminal Procedure 24.3(b) only allows a defendant to enter a conditional plea to reserve his right to appeal a denial of a motion to suppress. The trial court appears to have allowed Johnson to enter a guilty plea conditioned upon the results of a crime lab report, which is not authorized under Rule 24.3(b). The trial court had the authority to impose the sentence it did, and Johnson cannot show that the judgment is void or has been dismissed.

Johnson pleaded guilty in 2003 to two felonies, and his guilty plea waived his right to a trial at which evidence could be presented. Johnson may not relitigate a claim that he was innocent of the felonies of which he was previously convicted. Harris v. State, 273 Ark. 355, 620 S.W.2d 289 (1981). For the purpose of sentence enhancement pursuant to habitual-offender code provisions, the State may prove a prior conviction by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was convicted or found guilty. Ark. Code Ann. § 5-4-504(a) (Repl. 1997). A certified copy of a previous conviction by a court of record is sufficient to support a finding of a prior conviction. Ark. Code Ann. § 5-4-504(b) (Repl. 1997). On appeal, the test is whether there is substantial evidence that an appellant was previously convicted of the prior felony in question. Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997).

The introduction of evidence during the sentencing phase must be governed by the rules of admissibility and exclusion. Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1993). On appeal, this court will not reverse a trial court's ruling on the admission of evidence, absent an abuse of discretion, and it will not reverse absent a showing of prejudice. Id., 887 S.W.2d 275.

After a prima facie case was made of the two previous convictions, Johnson had the burden of proof that the judgment was invalid. Wright v. State, 67 Ark. App. 365, 1 S.W.3d 41 (1999). Johnson's mere allegation that his plea was conditional and that the condition was not met was insufficient to rebut the presumed validity of the judgment. Johnson produced no physical evidence that his condition had not been met. Johnson's attorney simply argues thatJohnson told him that a drug report was never filed, that he did not serve any time in the Department of Correction, and that the charges were dismissed. Johnson never produced a dismissal order. The State provided substantial evidence to support a finding of the two prior convictions.

Moreover, Johnson cannot demonstrate prejudice. This court will not reverse absent a showing of prejudice. Edwards v. State, 70 Ark. App. 127, 15 S.W.3d 358 (2000). The prior conviction evidence was cumulative to his testimony. Johnson testified that he entered a plea in Sebastian County and that he was guilty of the two felonies in question. Johnson also testified that he was guilty of at least four felonies in Oklahoma. The jury was aware of his admissions of guilt to six felonies, but the jury was only instructed about two felonies.

Affirmed.

Griffen and Vaught, JJ., agree.