Angela Hewitt v. State of Arkansas

2020 Ark. App. 172, 598 S.W.3d 531

• Court: Court of Appeals of Arkansas
• Decided: March 11, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 172 Reason: I attest to the accuracy and integrity of this document ARKANSAS COURT OF APPEALS Date: 2021-07-01 14:38:49 Foxit PhantomPDF Version: DIVISION IV 9.7.5 No. CR-19-736

Opinion Delivered: March 11, 2020 ANGELA HEWITT APPELLANT APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT [NOS. 17CR-18-315 AND 17CR-19- V. 328]

HONORABLE GARY COTTRELL, STATE OF ARKANSAS JUDGE APPELLEE REVERSED AND REMANDED

PHILLIP T. WHITEAKER, Judge

Appellant Angela Hewitt1 appeals from an order of the Crawford County Circuit

Court revoking her probation, arguing that her probationary sentence was illegal. The State

concedes error in this case. We agree and reverse and remand.

Hewitt was charged in case No. 17CR-18-315 with one count of possession of drug

paraphernalia, a Class D felony; in case No. 17CR-19-328, she was charged with one count

of possession of hydrocodone and one count of possession of drug paraphernalia, also Class

D felonies. In both cases, Hewitt was charged as a habitual offender pursuant to Arkansas

Code Annotated section 5-4-501(a) (Repl. 2013).2 On June 7, 2019, the Crawford County

1 We note some confusion about appellant’s first name in the record––some documents identify her as “Angela Hewitt” and others identify her as “Angel Hewitt.” 2 Hewitt does not challenge her status as a habitual offender under section 5-4-501. Circuit Court accepted her guilty plea in both case numbers and sentenced her to a total of

thirty-six months’ probation on each of the three counts, to be served concurrently. The

sentencing order expressly reflected that Hewitt was sentenced as a habitual offender under

section 5-4-501(a).

On June 12, 2019, the State filed a petition to revoke Hewitt’s probation, alleging

that she had failed to comply with the terms and conditions of her probation. The circuit

court held a hearing on the State’s petition and heard testimony from Hewitt’s probation

officer. At the conclusion of the hearing, the court revoked Hewitt’s probation. In case No.

17CR-18-315, the court sentenced her to six years in a regional correctional facility with

an additional six years’ suspended imposition of sentence, conditioned on Hewitt’s

completion of a drug-and-alcohol treatment program. In case No. 17CR-19-328, the court

suspended imposition of sentence for ten years, to run concurrently with the sentence in

case No. 17CR-18-315. The sentencing order, entered on July 25, 2019, again reflected

that Hewitt was sentenced as a habitual offender. Hewitt timely appealed, and she now

argues that her original probationary sentences were illegal.

Sentencing in Arkansas is entirely a matter of statute, and no sentence shall be

imposed other than as prescribed by statute. Clark v. State, 2019 Ark. App. 362, at 6, 584

S.W.3d 680, 684. A sentence is void or illegal when the circuit court lacks authority to

impose it. Whitson v. State, 2014 Ark. App. 283. Stated another way, when the law does not

authorize the particular sentence pronounced by the circuit court, the sentence is

unauthorized and illegal. Id.

2 As noted above, Hewitt was charged with three Class D felonies and was sentenced

as a habitual offender under Arkansas Code Annotated section 5-4-501(a)(A)(ii). Under this

statute, she was subject to an extended term of imprisonment of “not more than twelve (12)

years” because she had been convicted of a Class D felony. Ark. Code Ann. § 5-4-

501(a)(2)(E). Thus, at the time of her original guilty plea, she could have been sentenced

within a range of zero years to not more than twelve years’ imprisonment. See, e.g., Wells

v. State, 2017 Ark. App. 174, at 13, 518 S.W.3d 106, 114 (noting that a sentencing range

of zero to not more than fifteen years’ imprisonment was appropriate for a “large” habitual

offender convicted of a Class D felony who had previously been convicted of four felonies).

The circuit court did not impose a sentence within that range, however. When

Hewitt pled guilty, the circuit court sentenced her to concurrent terms of probation. This

sentence was directly contrary to Arkansas Code Annotated section 5-4-301(a)(2) (Repl.

2013), which expressly states that the “court shall not . . . place a defendant on probation” if it

is determined that the defendant has been previously convicted of two or more felonies in

accordance with the habitual-offender statute. (Emphasis added.) See also State v. Joslin, 364

Ark. 545, 548, 222 S.W.3d 168, 170 (2006) (reversing and remanding for resentencing

when defendant, who was a habitual offender, was sentenced to probation). The circuit

court’s imposition of probation as a sentence for Hewitt was therefore illegal on its face.

Joslin, 364 Ark. at 550, 222 S.W.3d at 171. The State concedes this point. Because the

sentence of probation was illegal, Hewitt’s remedy is for this court to reverse and remand

for appropriate resentencing as a habitual offender. See Taylor v. State, 354 Ark. 450, 457,

125 S.W.3d 174, 179 (2003).

3 Reversed and remanded.

HIXSON and MURPHY, JJ., agree.

Knutson Law Firm, by: Gregg A. Knutson, for appellant.

Leslie Rutledge, Att’y Gen., by: Christopher R. Warthen, Ass’t Att’y Gen., for appellee.