Winston v. State
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NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
DIVISION I
No. CACR08-620
Opinion Delivered
February 18, 2009
APPEAL FROM THE GREENE
COUNTY CIRCUIT COURT,
[NO. CR2005-450(B)]
JEFFERY WAYNE WINSTON
APPELLANT
V.
HONORABLE DAVID BURNETT,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
LARRY D. VAUGHT, Chief Judge
Appellant Jeffery Winston pled guilty to second-degree battery, resisting arrest, and
fleeing on April 3, 2007. He was sentenced to 72 months’ suspended imposition of sentence
on the battery charge and credited with 171 days time served on the remaining charges. On
July 16, 2007, the State filed a petition to revoke his suspended sentence, alleging that he
violated his suspension by committing the offenses of aggravated assault on a police officer,
second-degree battery of a police officer, and theft of motor fuel. After a February 5, 2008,
revocation hearing, the trial judge held that Winston violated the terms of his suspended
sentence and sentenced him to 72 months in the Arkansas Department of Correction. It is
from this decision that Winston now appeals.
For his first point of appeal, Winston claims that the trial court erred in its denial of his
request for a second mental evaluation. On September 5, 2007, Winston was granted a mental
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evaluation that was performed by Dr. Del Thomas, a clinical psychologist. Dr. Thomas
concluded that Winston did not suffer from a mental disease or defect and was able to
understand the proceedings against him. After obtaining a copy of Dr. Thomas’s report,
Winston asked the trial court to grant him a second mental evaluation. The trial court, after
reviewing the report and hearing evidence on the motion, denied the request finding no
justification for further testing. On appeal, Winston claims that this was an abuse of discretion.
We begin our examination by noting that this was a revocation hearing, not a criminal
trial. In a criminal trial, if a defendant has made a preliminary showing that his sanity at the
time of the commission of the offense is likely to be a significant issue he is entitled to the
assistance of a psychiatrist. Ake v. Oklahoma, 470 U.S. 68 (1987). And, our state’s mentaldefect statutory guidelines, codified at Ark. Code Ann. § 5-2-305 (Repl. 2006), provide for
psychiatric examination of a defendant, “[w]henever a defendant [is] charged in circuit court.”
This was not a hearing of a charge in circuit court, instead it was a sentence revocation. As
such, there is an open question as to Winston’s entitlement to a mental evaluation at all. Our
supreme court, in Pyland v. State, 302 Ark. 444, 790 S.W.2d 178 (1990), has directed that
whether to provide psychiatric assistance to one facing a revocation hearing must be on a
case-by-case basis; the court instructs that while due process must be accorded a person facing
the loss of liberty, there is no entitlement to the full range of criminal-trial safeguards, because
the court is not dealing with a person who had yet to be convicted of anything. Id.
Here, assuming for purposes of our analysis that Winston was entitled to a mental
evaluation, we now consider whether he was entitled to two evaluations. According to Ark.
Code Ann. § 5-2-305 (Repl. 2006), after an initial mental evaluation has been performed
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according to the statutory procedures, any further evaluation is discretionary with the trial
court. After a thorough examination of the evidence, including first-hand observations of
Winston’s demeanor, the trial court expressed its agreement with Dr. Thomas’s “sane”
diagnosis and denied Winston a secondary evaluation. On appeal, Winston contends that the
denial was an abuse of discretion.
According to our case law, a defendant is ordinarily presumed to be mentally
competent to stand trial, and the burden is on the defendant to prove otherwise. Bryant v.
State, 94 Ark. App. 387, 231 S.W.3d 91 (2006). Once the court reached a conclusion relating
to Winston’s sanity, it exercised its discretion to close the inquiry, cease further evaluation,
and move on with the proceeding. We cannot say that this was done in error. Instead, it was
a textbook example of the exercise of discretion that our statute provides the court in these
matters. Therefore, finding no abuse of discretion, we affirm on this point.
We also note that Winston’s contention that his initial evaluation was infirm because
the evaluation was completed by a psychologist, not a doctor, is without merit. This question
has been specifically answered in King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994), where
our supreme court concluded that a psychologist’s report was sufficient under the statute.
Next, we consider Winston’s companion point on appeal—he alleges that the trial
court erred in its denial of his continuance request. In doing so, he attempted to fashion a
confrontation-clause argument. He claimed that he had a right to question Dr. Thomas and
that a continuance was appropriate because “the evaluator was required to provide . . . all .
. . materials that they used in generating the report.”
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However, we note that a trial court shall grant a continuance only upon a showing of
good cause, considering not only the requests of the parties, but also the public interest in the
prompt disposition of the case. Ark. R. Crim. P. 27.3. The trial court’s decision relating to
the continuance will be reversed only when an abuse of discretion is shown. Kilgore v. State,
313 Ark. 198, 852 S.W.2d 810 (1993). Also, Winston has the additional burden of showing
that he was prejudiced by the denial of the continuance to such a degree that it amounts to
a denial of justice. Id.
At the outset, we note that Winston’s confrontation-clause argument is a nonstarter.
The record provides no basis for us to conclude that he was entitled to anything more than
the report of his mental evaluation, which he received. Furthermore, he made no argument
otherwise. Failure to cite any authority or argument in support of his points precludes us from
addressing the merits. Weatherford v. State, 352 Ark. 324, 101 S.W.3d 227 (2003).
As to the second component of his argument, that he needed more time to review the
report, there is also no merit to this allegation of error. The court was able to observe
Winston as he testified in the hearing to determine whether a second mental evaluation was
warranted. After hearing Winston testify at length on direct examination, but refuse to answer
any questions on cross examination, the court concluded that Winston was trying to “con the
system.” Based on these observations and the mental evaluation, the trial court found that the
hearing should not be continued a fourth time. As such the court’s decision did not amount
to an abuse of discretion, and we affirm on this point.
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Finally, Winston argues that he was not notified of the sentence that he could receive
should he violate the terms of his suspended sentence. At the hearing, two Paragould police
officers showed that they stopped Winston’s vehicle after it had been reported that a vehicle
matching that description had stolen gas. During the stop, Winston twice hit an officer in the
face. A struggle ensued, and Winston was restrained without further incident. Certainly,
evidence suggesting second-degree battery on a police officer is sufficient to show that
Winston violated the conditions of his release. Further, he signed an acknowledgment that
he understood any violation of the conditions could result in a revocation and the imposition
of “any sentence . . . that might have been imposed originally.” As such he was on notice of
the sentence he could receive should he violate the conditions of his release, and we affirm.
Affirmed.
G LADWIN and K INARD, JJ., agree.
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