Ray Sebastian v. State of Arkansas

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca05-114

DIVISION II

CA05-114

November 2, 2005

RAY SEBASTIAN AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[JJD 04-1233]

V. HON. WILEY BRANTON, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Ray Sebastian appeals from his adjudication as a juvenile delinquent for committing first-degree terroristic threatening and third-degree assault, arguing that his procedural due process rights were violated because the State failed to provide him notice of these charges until after the State concluded its case-in-chief. We affirm because appellant failed to present his due-process argument to the trial court.

Appellant was originally charged with aggravated assault. The State thereafter twice amended the information: first, to change the date of the offense; second, to change the assault offense to third-degree assault and to add the terroristic threatening charge.

The fact that appellant was not served with the second amended petition became clear at the conclusion of the State's case-in-chief, when appellant moved for a directed verdict only on the aggravated assault charge. A copy of the second amended petition was provided to appellant at that time. The trial court allowed appellant a brief recess and specifically offered to declare a mistrial or any other relief short of a dismissal. However, after a brief recess during which appellant's counsel conferred with appellant, she requested no furtherrelief and proceeded with appellant's defense. The trial court thereafter found appellant guilty of first-degree terroristic threatening and third-degree assault. He was committed to the Department of Youth Services.

Appellant argues that the State's failure to provide notice of the charges in the second amended petition violates his procedural due process rights and that we should reverse and dismiss the charges against him. Certainly, procedural due process entitles a defendant to notice of the charges against him. Dunn v. U.S., 442 U.S. 100 (1979) (stating that few constitutional principles are more firmly established than a defendant's right to be heard on the specific charges of which he is accused); Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993) (stating that a conviction without notice in the charging instrument is a denial of due process); Ark. Code Ann. ยง 9-27-312 (Repl. 2002) (requiring that a copy of a petition to begin delinquency proceedings must be served on the juvenile and the person having care and control of juvenile). However, an allegation that a due-process right has been violated is waived unless it is first raised before the trial court; even constitutional arguments must be raised to the trial court before they will be addressed on appeal. Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997).

Accordingly, we affirm appellant's adjudication as a delinquent because he clearly waived his entitlement to argue that his due-process rights had been violated. At the close of the State's case-in-chief, appellant's counsel, relying on the first amended information, moved for a directed verdict on the aggravated assault charge. Appellant was provided a copy of the second amended petition and the case proceeded as follows:

Counsel: It's different.

Court: I don't know if it's a lot different.

Counsel: I'm saying the charges are different.

Court: Do you want us to do it all over again? I don't think it will make muchof a difference in the testimony. I think the testimony will be the same. Do you need more time? I can declare a mistrial and we can come back and do it all over again since you got the wrong petition. I'll do what you want me to do. ...

Counsel: No, Your Honor.

Court: Any witnesses you'd care to call? Do you need to confer with your client?

Counsel: I need to confer with my client.

Court: We'll be in a brief recess. If you want some other relief, I'll give it to you. I'll give you whatever relief you think you need short of a dismissal.

Counsel: Thank you.

...

Court: We're back on the record. [Defense counsel]?

Counsel: Your Honor, I'll call my client at this time.

(Emphasis added.) Thus, appellant clearly waived his entitlement to argue that his due process rights were violated because he did not raise this specific argument below. Dulaney, supra.

Further, we note that appellant did not request a mistrial or a continuance although the trial court stood ready to offer any relief short of dismissal of the charges. A defendant cannot fail to request a remedy below and then claim error on appeal because he did not receive any relief. Berry v. State, 74 Ark. App. 141, 45 S.W.3d 435 (2001). Here, not only did appellant fail to request relief, but he specifically refused most of the relief offered by the trial court, namely, a mistrial or any other relief except dismissal of the charges. We also note that appellant cannot now complain on appeal because he received all of the relief he requested, which was a brief recess to confer with his attorney. Ashlock v. State, 64 Ark. App. 253, 983 S.W.2d 448 (1998).

Because we affirm, we do not reach appellant's argument that the appropriatedisposition upon reversal would be dismissal of the charges, as opposed to remanding for a new trial.

Affirmed.

Vaught and Roaf, JJ., agree.