Cupit v. State

Odis Alfred CUPIT v. STATE of Arkansas

CR 95-455                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered May 20, 1996


1.   Appeal & error -- appeals in guilty plea cases generally
     disallowed -- nonjurisdictional issues may be reviewed. --
     Appeals in guilty plea cases are generally disallowed;
     however, the court will review nonjurisdictional issues, such
     as the admission of testimony and evidence authorized by Ark.
     Code Ann. 16-97-101 (Repl. 1995), which arose during the
     penalty phase of the trial; this position by no means
     indicates a willingness to review the imposition of sentence
     simply where the defendant maintains his sentence is excessive
     when, in fact, his sentence is within the range prescribed by
     statute for the offense in question.

2.   Sentencing -- appellant's sentence within statutory range --
     court declined to review what appellant termed excessive
     sentence. -- Where appellant's sentence of five years
     imprisonment on each count of sexual abuse in the first degree
     was within the statutory range, the court, in view of his plea
     of guilty, declined to review appellant's contention that the
     sentences given for the separate counts were excessive.

3.   Appeal & error -- no objection made at trial -- court would
     not review issue. -- The court declined to review the decision
     to run the sentences consecutively because no objection was
     made to the trial court in that respect and because the
     argument amounted to no more than an additional contention
     that the sentence was excessive.


     Appeal from Grant Circuit Court; John Cole, Judge; affirmed.
     Charlie L. Rudd, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     David Newbern, Justice.
     May 20, 1996   *ADVREP*SC2*


                                   CR95-455
ODIS ALFRED CUPIT                  Opinion Delivered:

          Appellant                Appeal from Grant Circuit
                                   Court (CR 94-80-1)
     v.
                                   Honorable John Cole,
STATE OF ARKANSAS                  Circuit Judge

          Appellee                 Affirmed





                     David Newbern, Justice.


     Odis Alfred Cupit engaged in sexual misconduct with his two
very young granddaughters in 1993.  In 1994 he pleaded guilty to
and was convicted of five counts of sexual abuse in the first
degree.  After finding Mr. Cupit guilty, the Trial Court received
a pre-sentence report and held a hearing with respect to the
sentence.  Mr. Cupit asked to be sentenced in accordance with Ark.
Code Ann.  16-90-803 (Supp. 1995), which provides presumptive
sentences for felonies committed on or after January 1, 1994. 
Despite their inapplicability, the Trial Court considered the
statutory guidelines.  He then departed from them, following the
procedure prescribed in Ark. Code Ann.  16-90-804 (Supp. 1995). 
Mr. Cupit was sentenced to five years imprisonment for each offense
with the sentences to run consecutively.  He contends there should
have been no departure from the guidelines and the sentences should
have been ordered served concurrently.  The judgment is affirmed.
     Since the enactment requiring bifurcated felony trials, Ark.
Code Ann.  16-97-101 (Repl. 1995), we have clung to our rule
generally disallowing appeals in guilty plea cases.  See Ark. R.
App. P. Crim. 1(a).  That rule was restated in Hill v. State, 318
Ark. 408, 887 S.W.2d 275 (1994), but the Court also said it would
"review ... nonjurisdictional issues such as the admission of
testimony and evidence authorized by this new statute, which arose
during the penalty phase of the trial...."  (Presumably issues
concerning jurisdiction would have been handled in connection with
the guilt-innocence phase of the trial.)  The following statement
appears later in the Hill case opinion: "This position by no means
indicates a willingness on our part to review the imposition of
sentence simply where the defendant maintains his sentence is
excessive, when in fact his sentence is within the range
pr[e]scribed by statute for the offense in question."  
     Sexual abuse in the first degree is a Class C felony, Ark.
Code Ann.  5-14-108 (Repl. 1993), which calls for a sentence range
of not less than three years nor more than ten years imprisonment. 
Ark. Code Ann.  5-4-401 (Repl. 1993).  Mr. Cupit was sentenced to
five years imprisonment on each count.  That is within the
statutory range.  In view of Mr. Cupit's plea of guilty, we decline
to review his contention that the sentences given for the separate
counts are excessive.  We decline to review the decision to run the
sentences consecutively because no objection was made to the Trial
Court in that respect, Halbrook v. State, 319 Ark. 350, 891 S.W.2d 379 (1995); Walker v. State, 303 Ark. 401, 797 S.W.2d 447 (1990),
and because the argument amounts to no more than an additional
contention that the sentence was excessive.
     Affirmed. 
Dudley, J., not participating.