Richie v. State
Annotate this Case
Download PDF
Cite as 2009 Ark. 602
SUPREME COURT OF ARKANSAS
No.
CR08-793
JEREMY MICHAEL RICHIE,
APPELLANT,
VS.
STATE OF ARKANSAS.
APPELLEE,
Opinion Delivered December 3, 2009
AN APPEAL FROM THE CIRCUIT
COURT OF FAULKNER COUNTY,
ARKANSAS, NO. CR2004-388,
HONORABLE CHARLES EDWARD
CLAWSON JR., CIRCUIT JUDGE
REMANDED WITH DIRECTIONS
ELANA CUNNINGHAM WILLS, Associate Justice
The court of appeals certified this appeal to our court in order to consider whether a
circuit court may place “conditions of incarceration” upon a criminal defendant’s conviction.
We conclude that the circuit court in this case lacked the authority to impose conditions upon
a sentence of incarceration, and we reverse with directions to strike the conditions and for
entry of a new judgment and commitment order.
Appellant Jeremy Richie was originally charged on January 26, 2004, with one count
of possession of methamphetamine and one count of possession of drug paraphernalia, both
Class C felonies. On February 4, 2005, Richie entered a negotiated plea of guilty to both
charges, and the circuit court sentenced him to five years’ probation on each count, to be
served concurrently. One of the terms of Richie’s probation was that he complete the
Faulkner County Drug Court Substance Abuse Program.
CR08-793
Cite as 2009 Ark. 602
On May 6, 2005, the State filed a petition to revoke Richie’s probation, contending
that he had failed to abstain from substance abuse and had failed to adhere to the rules of the
Drug Court program. The Faulkner County Circuit Court revoked Richie’s probation and
sentenced him to a period of twelve months’ confinement in the Regional Punishment
Facility and an additional five years’ probation. Again, a “special condition” of Richie’s
probation was that he participate in the Drug Court Substance Abuse Program.
During Richie’s probationary period, the State filed a second petition to revoke his
probation on January 7, 2008, alleging that he had violated Arkansas laws, failed to abstain
from alcohol, and failed to abide by curfew. Following this petition for revocation, the circuit
court entered an order on January 18, 2008, ordering Richie to attend a residential drug
treatment program and noting that Richie had previously been ordered to obtain drug
treatment or counseling as part of his probation. A subsequent order entered on January 23,
2008, reiterated the order that he participate in a residential treatment program and found
that, should he fail to complete the program, the court would issue an order for his immediate
incarceration.
On February 8, 2008, the State filed an amended motion for revocation, contending
that Richie had, in addition to the above-stated grounds, associated with convicted felons, in
violation of the terms of his probation. The circuit court set a hearing for February 15, 2008,
at which time Richie conceded that he had violated the terms of his probation. Although
Richie requested a more lenient sentence, the circuit court revoked his probation and
-2-
CR08-793
Cite as 2009 Ark. 602
sentenced him to ten years on each count, to run concurrently, in the Arkansas Department
of Correction. In pronouncing sentence from the bench, the court directed Richie to
complete the Therapeutic Community Program while in prison.1
The judgment and commitment order, entered on March 14, 2008, set out Richie’s
two ten-year concurrent sentences and directed him to submit to drug and alcohol treatment
and counseling at his own expense, as well as periodic drug and alcohol testing. Richie filed
a notice of appeal,2 and now raises two points for reversal, contending that the circuit court
erred in imposing a sentence in excess of the maximum allowed by Arkansas law and in
imposing unlawful conditions on his sentence.
In his first point on appeal, Richie contends that the circuit court imposed an illegal
sentence because the ten-year sentences were in excess of the maximum allowed by law. As
noted above, after revoking Richie’s probation, the circuit court sentenced him to two
concurrent ten-year sentences in the Arkansas Department of Correction. Richie argues that,
1
The court commented, “And the reason for [sentencing him to the Department
of Correction is] that I think he will complete these programs forthwith. I think he has
the ability to do that. I want him on supervision for just as long as I could possibly keep
him on parole supervision because I think somebody is going to have to hold his hand.”
2
The judgment and commitment order was entered on March 14, 2008, but
Richie did not file his notice of appeal until April 16, 2008. This court granted his
motion for belated appeal on September 4, 2008. Richie v. State, 374 Ark. 158, 286
S.W.3d 681 (2008) (per curiam). His attorney initially filed a no-merit brief pursuant to
Anders v. California, 386 U.S. 738 (1967), but Richie filed pro se points for reversal
regarding the legality of his sentence. The court of appeals observed that there were two
potential issues relating to whether Richie had been sentenced illegally; therefore, the
court of appeals remanded for rebriefing. Richie v. State, 2009 Ark. App. 522, ___ S.W.3d
___.
-3-
CR08-793
Cite as 2009 Ark. 602
because the court had previously sentenced him to one year’s confinement in conjunction
with his initial probation revocation, the ten-year sentences were more than permitted by
statute.
The crimes to which Richie pled guilty were Class C felonies. Arkansas Code
Annotated section 5-4-401(a)(4) (Repl. 2006) provides that, for a Class C felony, the sentence
“shall be not less than three (3) years nor more than ten (10) years.” Because he had
previously been sentenced to one year’s “confinement” in the Department of Community
Punishment, Richie asserts that the greatest sentence the circuit court could have imposed on
him following the revocation of his probation was nine years.
This argument was not raised below; however, it is well settled that an appellant may
challenge an illegal sentence for the first time on appeal, even if he did not raise the argument
below. See Cantrell v. State, 2009 Ark. 456, ___ S.W.3d ___; Donaldson v. State, 370 Ark. 3,
257 S.W.3d 74 (2007); Sullivan v. State, 366 Ark. 183, 234 S.W.3d 285 (2006). Specifically,
this court views an issue of a void or illegal sentence as being an issue of subject-matter
jurisdiction, which we may review whether or not an objection was made in the trial court.
Donaldson, supra (citing Mayes v. State, 351 Ark. 26, 89 S.W.3d 926 (2002); Thomas v. State,
349 Ark. 447, 79 S.W.3d 347 (2002); Flowers v. Norris, 347 Ark. 760, 68 S.W.3d 289 (2002);
Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992)). A sentence is void or illegal when the
trial court lacks authority to impose it. Donaldson, supra.
-4-
CR08-793
Cite as 2009 Ark. 602
The court’s decision ordering confinement as part of Richie’s probation revocation is
governed by Arkansas Code Annotated section 5-4-304 (Repl. 2006), which provides, in
pertinent part, as follows:
(c) Following a revocation hearing held pursuant to § 5-4-310 and in
which a finding of guilt has been made or a defendant has entered a plea of
guilty or nolo contendere, a court may add a period of confinement to be
served during the period of suspension of imposition of sentence or period of
probation.
....
(d)(1)(A) The period actually spent in confinement pursuant to this
section in a county jail, city jail, or other authorized local detentional,
correctional, or rehabilitative facility shall not exceed:
(i) One hundred twenty (120) days in the case of a felony;
....
(e) If the suspension or probation of a defendant is subsequently revoked
and the defendant is sentenced to a term of imprisonment, the period actually
spent in confinement pursuant to this section shall be credited against the subsequent
sentence.
(Emphasis added.)
An illegal sentence is one that the trial court lacks the authority to impose. See
Donaldson, supra. When the sentence given is within the maximum prescribed by law, the
sentence is not illegal, because the court has the authority to impose it. See id.; Cooley v. State,
322 Ark. 348, 909 S.W.2d 312 (1995). Here, the ten-year sentences were clearly within the
maximum sentence prescribed by section 5-4-401(a)(4) and were thus not illegal. See
Donaldson, supra. The circuit court did not impose an illegal sentence that was in excess of
-5-
CR08-793
Cite as 2009 Ark. 602
the sentence permitted by statute, but rather failed to give jail-time credit under section 5-4304(e). A request for jail-time credit is a request for modification of a sentence that has been
imposed in an illegal manner. See Cooley, supra; Morgan v. State, 73 Ark. App. 107, 42 S.W.3d
569 (2001). Because the sentence was not entered without authority, this is not an argument
that Richie can raise for the first time on appeal, see Morgan, supra, and accordingly, we affirm
on this point. He is not without a remedy, however, as he can raise his claim in a Rule 37
petition for post-conviction relief. See Ark. R. Crim. P. 37.2(b) (“All grounds for postconviction relief from a sentence imposed by a circuit court, including claims that a sentence
. . . was illegally imposed, must be raised in a petition under this rule.”); Ark. R. Crim. P.
37.2(c) (if an appeal is taken, a petition for relief under the Rule may be filed with the circuit
court within sixty days of the issuance of the mandate by the appellate court); Johnson v. State,
339 Ark. 487, 5 S.W.3d 477 (1999) (appeal from denial of Rule 37 petition for
postconviction relief filed after circuit court entered an order revoking appellant’s probation).
In his second argument on appeal, Richie contends that the circuit court erred by
imposing improper conditions upon his sentence of imprisonment in violation of Arkansas
Code Annotated section 5-4-104(d) (Repl. 2006). As part of the judgment and commitment
order that sentenced him to ten years in the Arkansas Department of Correction, Richie was
also ordered to “submit to . . . drug [and] alcohol treatment and counseling along with any
other counseling deemed appropriate.” Richie argues that this provision of his sentence is not
authorized by section 5-4-104(d) and is therefore illegal.
-6-
CR08-793
Cite as 2009 Ark. 602
Arkansas Code Annotated section 5-4-104(a) (Repl. 2006) declares that “[n]o
defendant convicted of an offense shall be sentenced otherwise than in accordance with this
chapter.” In Arkansas, sentencing is entirely a matter of statute. Donaldson, supra. In stating
this general rule, this court has consistently held that sentencing shall not be other than in
accordance with the statute in effect at the time of the commission of the crime. Id.
Specifically, where the law does not authorize the particular sentence pronounced by the trial
court, the sentence is unauthorized and illegal. Id.
Section 5-4-104(d) sets out authorized sentences and provides as follows:
(d) A defendant convicted of an offense other than a Class Y felony,
capital murder, § 5-10-101, treason, § 5-51-201, or murder in the second
degree, § 5-10-103, may be sentenced to any one (1) or more of the following,
except as precluded by subsection (e) of this section:
(1) Imprisonment as authorized by §§ 5-4-401 - 5-4-404;
(2) Probation as authorized by §§ 5-4-301 - 5-4-311;
(3) Payment of a fine as authorized by §§ 5-4-201 - 5-4-203;
(4) Restitution as authorized by a provision of § 5-4-205; or
(5) Imprisonment and payment of a fine.
Richie argues that this statute does not authorize a trial court to order a criminal defendant
to participate in drug and alcohol treatment as a condition of imprisonment.
A circuit court may clearly place conditions on a defendant when the court suspends
the imposition of sentence or places the defendant on probation. Arkansas Code Annotated
section 5-4-303(a) (Repl. 2006) specifically states that, “[i]f a court suspends imposition of
-7-
CR08-793
Cite as 2009 Ark. 602
sentence on a defendant or places him or her on probation, the court shall attach such
conditions as are reasonably necessary to assist the defendant in leading a law-abiding life.”
However, there is no similar provision in section 5-4-104(d) that would allow a court to place
specific conditions on a sentence of incarceration.
Richie argues that our recent case of Seamster v. State, 2009 Ark. 258, ___ S.W.3d ___,
supports his position. In Seamster, this court considered whether an order to complete a sex
offender treatment program was a condition of a prison sentence or a condition of a
suspended sentence. There, appellant Seamster pled guilty to two counts; for one conviction,
he received a sentence of six years’ imprisonment, and for the other, he received a ten year
suspended imposition of sentence (SIS), which was to run concurrently with the six-year
sentence. As part of his plea agreement, Seamster agreed to complete the Reduction of Sexual
Victimization Program (RSVP). In addition, he signed a document entitled “Conditions of
Suspension or Probation,” in which he agreed to “complete Aftercare Program as may be
ordered or recommended by RSVP program.”
Seamster reported to the Department of Correction and began to serve his six-year
sentence. During his incarceration, he was not allowed to participate in RSVP because he did
not comply with a requirement that he admit his guilt as condition of enrollment. After
serving his entire six-year sentence, Seamster was released on March 6, 2007. On March 14,
2007, the State petitioned to revoke his SIS, alleging that Seamster “failed to complete the
RSVP Program and has failed to comply with the After Care Program.” The trial court
-8-
CR08-793
Cite as 2009 Ark. 602
granted the petition and sentenced Seamster to six more years in the Arkansas Department of
Correction.
On appeal, Seamster argued that the requirement to complete RSVP was a “condition
of the sentence of imprisonment,” not a condition of his SIS. This court rejected his
argument, concluding that the requirement to complete RSVP was a term of his SIS, noting
that the “Terms/Conditions of Disposition” that listed the terms of the SIS, including an
explicit requirement for him to “enroll in and complete RSVP program prior to being
released from [the Arkansas Department of Correction].” Seamster, 2009 Ark. 258, at 6, ___
S.W.3d at ___. Therefore, this court concluded that completion of the RSVP program was
a condition of his SIS, not a condition of his imprisonment. Id.
In a footnote accompanying this conclusion, the court reiterated the general rule that
a court loses jurisdiction to amend or modify a sentence once it is put into execution.
Therefore, the court commented, “it is unclear exactly what Seamster and the court of appeals
mean by use of the terms ‘condition of a sentence of imprisonment’ and ‘condition of
incarceration’ regarding Seamster’s six-year sentence.” Id. at 6, n.3, ___ S.W.3d at ___.
Richie argues that the Seamster footnote means that the circuit court did not have the
authority to order him to undergo drug rehabilitation and treatment as part of his sentence.
Although this court found the RSVP requirement to be a condition of Seamster’s SIS, the
judgment and commitment order in this case clearly made participation in a drug treatment
program a condition of Richie’s incarceration after the court revoked his probation and
-9-
CR08-793
Cite as 2009 Ark. 602
sentenced him to the Department of Correction. We find no statutory authority to support
such a condition, and the State does not point to a statute that so provides. Instead, the State
argues that the circuit court had wide latitude regarding sentencing under the Arkansas Drug
Court Act. The Drug Court Act provisions, however, do not authorize a court to attach
conditions to sentences of incarceration.
In the original language of that Act, the “drug court program” was defined as “a highly
structured judicial intervention process for substance abuse treatment of eligible offenders
which requires successful completion of the drug court program treatment in lieu of
incarceration.” Ark. Code Ann. § 16-98-302(1) (Repl. 2006).3 The statute further provided
that drug court programs “may require a separate judicial processing system differing in
practice and design from the traditional adversarial criminal prosecution and trial systems.”
Ark. Code Ann. § 16-08-303(c)(1) (Repl. 2006). Sanctions permitted under the Drug Court
Act included court costs, treatment costs, drug testing costs, a program user fee, and necessary
supervision fees. Ark. Code Ann. § 16-98-304(a)(1)–(5) (Repl. 2006 & Supp. 2009). No
provision in the Drug Court Act itself mentions incarceration.
Nonetheless, the State relies on section 16-98-302(b)(1) (Supp. 2009), which states that
a goal of the program is “integration of substance abuse treatment with justice system case
3
The Act, as amended in 2007, now provides that one of the goals of the program
is to use a “nonadversarial approach in which prosecution and defense promote public
safety while protecting the right of the accused to due process.” Ark. Code Ann. § 16-98302(b)(2) (Supp. 2009).
-10-
CR08-793
Cite as 2009 Ark. 602
processing.” The State then urges that “the circuit court did just that, it integrated the
punishment set by the criminal-justice process with a goal of rehabilitation.” The State misses
the point, however, that there is no statutory provision authorizing a circuit court to impose
a condition of incarceration on a defendant, even one who may have gone through the drug
court program. In fact, the State does not even address the import of this court’s comment
in Seamster, supra, that it was unclear what was even meant by the phrase “condition of
incarceration.”
The import of that comment is that, generally speaking, absent a statute, rule, or
available writ, once the circuit court enters a judgment and commitment order, jurisdiction
is transferred to the Department of Correction—the Executive Branch—and it is for that
branch to determine any conditions of incarceration, such as whether the defendant will
undergo drug treatment. See Ark. Code Ann. § 5-4-402(a) (Repl. 2006) (“a defendant
convicted of a felony and sentenced to imprisonment shall be committed to the custody of
the Department of Correction for the term of his or her sentence or until released in
accordance with law.”); Ark. Dep’t of Correction v. Stapleton, 345 Ark. 500, 51 S.W.3d 862
(2001) (once a valid judgment and commitment order is entered, a circuit court has no
authority to order where a sentence will be served).
Criminal statutes are to be strictly construed, with any doubts resolved in favor of the
defendant. See Brown v. State, 375 Ark. 499, 292 S.W.3d 288 (2009); Stivers v. State, 354 Ark.
140, 118 S.W.3d 558 (2003). Moreover, no defendant convicted of an offense shall be
-11-
CR08-793
Cite as 2009 Ark. 602
sentenced otherwise than in accordance with our statutes. See Ark. Code Ann. § 5-4-104(d).
Because no statute authorized the action taken, the circuit court in this case imposed an illegal
sentence when it attempted to require Richie to undergo drug and alcohol treatment as a
condition of his incarceration. To this extent, the sentence was illegal, and we remand to the
circuit court with directions to strike the unlawful conditions and for the entry of a new
judgment and commitment order consistent with this opinion.
IMBER, J., not participating.
-12-
CR08-793
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.