Thomas Lee Deere v. State of Arkansas

Annotate this Case
cr03-761

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

June 17, 2004

THOMAS LEE DEERE

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-761

APPEAL FROM THE CIRCUIT COURT OF HOWARD COUNTY, CR 88-70, 88-71, 88-72, HONORABLE TED C. CAPEHEART, JUDGE

AFFIRMED

                                                                                                               Per Curiam

Appellant is serving an aggregate sentence of sixty years' imprisonment after having been found guilty in 1989 of theft of property, delivery of a controlled substance, and two counts of burglary. In 2003, appellant filed a motion to correct a mistake in his judgment and commitment order. He alleged that the order should have reflected a total term of imprisonment of thirty years instead of sixty. The circuit court denied appellant's motion.

A circuit court is allowed to amend a judgment to speak the truth. See McCuen v. State, 338 Ark. 631, 634, 999 S.W.2d 682, 683 (1999). Here, however, the circuit court properly denied relief because there is no evidence that the appellant's judgment and commitment order contains any error. The circuit court concluded that the docket sheet and other records in appellant's case showed that appellant was correctly sentenced to sixty years' imprisonment. Appellant has failed to include the docket sheet in his addendum, or to abstract his sentencing hearing at trial. It is well settled that the appellant bears the burden of producing a record that demonstrates error, and that we do not consider matters outside of the record on appeal. E.g., Miles v. State, 350 Ark. 243, 250, 85 S.W.3d 907, 912 (2002). Although our current rules provide a fifteen day opportunity for an appellant to cure any deficiencies in his brief, such efforts would be futile because it is clear that appellant could not prevail on appeal. See Ark. Sup. Ct. R. 4-2(b)(3) (2003); Booth v. State, 353 Ark. 119, 120, 110 S.W.3d 759, 760 (2003)(noting that court has consistently held that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail). We may go to the record to affirm, e.g. Ferguson v. State, 343 Ark. 159, 171, 33 S.W.3d 115, 123 (2000), and the record lodged in appellant's direct appeal is a public record which need not be incorporated into the record on the second appeal which stems from the same judgment of conviction. Johnson v. State, 332 Ark. 182, 183, 964 S.W.2d 199, 199 (1998). Here, a review of appellant's sentencing hearing at trial shows that his judgment correctly reflects the sentence.

Appellant's judgment and commitment order reflects he was sentenced to thirty years' imprisonment on one count of burglary, a concurrent sentence of twenty years' imprisonment for theft of property, and a consecutive sentence of ten years' imprisonment for the second count of burglary. In addition, appellant was sentenced to a total of thirty years' imprisonment for delivery of a controlled substance, with ten years of that sentence running concurrently and twenty years of it running consecutively. Thus, appellant was sentenced to a total of sixty years' imprisonment. The record of appellant's sentencing hearing confirms that his judgment and commitment order properly reflects the sentence imposed. The trial court sentenced appellant to a total of sixty years' imprisonment by stating:

I'm going to sentence you to thirty (30) years on the drugstore burglary, which is what the jury recommended on the Dierks Pharmacy charge. They didn't think you were quite as guilty on the Sharp's Grocery burglary, and I assume I would have done the same thing. You probably were doped up and didn't know where you were when you were trying to break in the drugstore, and you probably made a hole in the wrong ceiling and went down there and found out there weren't any drugs and climbed back out the hole and made another hole until you found drugs. They only gave you ten (10) years, and I think that's a fair sentence on that. I'm going to sentence you to ten (10) years to run consecutively to the thirty (30) years in the other burglary. That's for a total of forty (40) years consecutive, and I'm sure you know what that means. It means one after another. I'm going to sentence you to thirty (30) years on the Dierks Pharmacy and thirty (30) years on the controlled substance. I'm going to run ten (10) of those years concurrently and twenty (20) of those years consecutively for a total of sixty (60) years imprisonment.

Appellant was thus sentenced to sixty years' imprisonment as reflected by his judgment and commitment order, and the circuit court's denial of relief on this claim is affirmed. Furthermore, appellant's argument that the denial of his motion amounted to a denial of due process is unavailing for the same reasons.

Appellant also raises claims that were not presented to the circuit court below. We will not address arguments raised for the first time on appeal. E.g. Hoover v. State, 353 Ark. 424, 430, 108 S.W.3d 618, 620 (2003). Appellant's argument that he was denied his Sixth Amendment right to counsel because he represented himself at trial is barred by the law-of-case doctrine because this Court rejected the claim in appellant's direct appeal. E.g. Green v. State, 343 Ark. 244, 250, 33 S.W.3d 485, 489 (2000). Finally, appellant's claim that Rule 60 of the Arkansas Rules of Civil Procedure dictates that a correction should be made in his judgment and commitment order is rejected because the judgment contains no error and because Rule 60 is inapplicable to criminal judgments. McCuen, 338 Ark. at 634, 999 S.W.2d at 683-84.

Affirmed.

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