Cite as 2019 Ark. App. 538 ARKANSAS COURT OF APPEALS Digitally signed by Elizabeth Perry Date: 2022.08.08 10:56:32 -05'00' DIVISION II Adobe Acrobat version: No. CR-19-374 2022.001.20169 Opinion Delivered: November 13, 2019
ANITA ROWTON APPEAL FROM THE LONOKE APPELLANT COUNTY CIRCUIT COURT [NOS. 43CR-13-496 & 43CR-18-305] V. HONORABLE BARBARA ELMORE, JUDGE STATE OF ARKANSAS APPELLEE REMANDED TO SETTLE AND SUPPLEMENT THE RECORD; REBRIEFING ORDERED
KENNETH S. HIXSON, Judge
Appellant Anita Rowton was serving probation in case number 43CR-13-496
(hereinafter referred to as 13-496). While on probation, appellant was involved in a motor-
vehicle accident, wherein she was cited with driving while intoxicated (DWI), refusal to
submit to a chemical test, and careless and prohibited driving. Appellant was convicted of
all three offenses in a bench trial in the Lonoke County Circuit Court in case number
43CR-18-305 (hereinafter referred to as 18-305). Appellant was sentenced to an aggregate
term of twelve months in the county jail. Immediately following the bench trial, appellant
was tried and found guilty of violating the terms and conditions of her probation in 13-496.
The circuit court sentenced appellant to serve an aggregate term of eighteen months’
imprisonment. On appeal, appellant contends that there was insufficient evidence to convict
her of DWI in 18-305 and that there was insufficient evidence that she violated the terms and conditions of her probation in 13-496. However, we are unable to reach the merits at
this time. We remand to settle and supplement the record, and we order rebriefing after
the record is settled and supplemented.
I. Relevant Facts
A. Case Number 43CR-18-305
On February 2, 2018, appellant’s vehicle ran off the road when she was driving
around a sharp curve. The front air bags deployed, and the vehicle was left inoperable and
wedged on top of a tree stump. Law enforcement arrived and observed her behavior at the
scene. 1 The officer testified that appellant was generally disoriented, incoherent, and had
slurred speech. Appellant was transported to the sheriff’s department where she was given
a breathalyzer test. Appellant tested 0.00%. The officer then requested that appellant submit
to a urinalysis, and appellant refused. Appellant was arrested and charged with DWI in
violation of Arkansas Code Annotated section 5-65-103 (Repl. 2016), refusal to submit to
chemical test in violation of Arkansas Code Annotated section 5-65-205, and careless and
prohibited driving in violation of Arkansas Code Annotated section 27-51-104. The circuit
court held a bench trial on December 5, 2018.
According to appellant’s statement of the case in her brief on appeal, she was found
guilty by the Lonoke County District Court, and she appealed to the circuit court.
1 The State introduced into evidence the officer’s dash-camera video. This video was played for the trial court, and the State contended that it was evidence of appellant’s impairment. Although the video is included as an exhibit in our record, it is not contained in appellant’s addendum as required. See Ark. Sup. Ct. R. 4-2(a)(8)(A)(i). 2 According to the transcript contained in our record on appeal, at the conclusion of the
bench trial, the circuit court orally found appellant guilty.
Now I’m going to take into consideration everything. I’m going to take into consideration what I saw on the video. And she was swaying. I -- I was beginning to sway with her. Okay? She was swaying. And she did have -- was slurred. And I just -- I don’t think her motor skills and her judgment was up to par. I believe that those combinations of everything, if you take into combination everything -- her statement, her reactions, her rambling on, consistently rambling on, talking when other people were trying to tell her not to talk, her behavior indicated to me that she was intoxicated. So I’m finding her guilty.
Despite our record containing a circuit court trial transcript finding appellant guilty, on
January 9, 2019, the circuit court filed a sentencing order indicating that appellant
voluntarily, intelligently, and knowingly entered a guilty plea on each of the three charges.
The sentencing order reflects that appellant was sentenced to serve twelve months in the
county jail for DWI and three months in the county jail for refusal to submit to a chemical
test. Further, the circuit court did not check any box regarding whether it had found her
guilty or sentenced her on the charges, no sentence is listed for careless and prohibited
driving, the total time to be served for all offenses was left blank, and the circuit court
checked the box that this case was not an appeal from district court. Hence, the record on
appeal contains inconsistencies that must be settled as discussed below.
B. Case Number 43CR-13-496
On April 7, 2014, appellant pleaded guilty in the Lonoke County Circuit Court in
13-496 to breaking or entering in violation of Arkansas Code Annotated section 5-39-202,
theft of property in violation of Arkansas Code Annotated section 5-36-103(b)(3)(A), third-
degree escape in violation of Arkansas Code Annotated section 5-54-112, and public
intoxication in violation of Arkansas Code Annotated section 5-71-212. Appellant was 3 placed on probation for seventy-two months for the breaking-or-entering and theft-of-
property charges, twelve months for the third-degree-escape charge, and thirty days for the
public-intoxication charge.
On February 16, 2018, the State filed a petition to revoke appellant’s probation,
alleging that appellant had violated her terms and conditions of probation by failing to do
the following:
1. Defendant failed to report on 5/17/17.
2. Defendant was arrested for Careless Driving, DWI 1st and Refusal to Submit to Chemical Test on 2/3/18.
3. Defendant tested positive for alcohol on 5/18/17.
4. Defendant was not truthful when she denied consuming alcohol on 5/18/17.
The circuit court held a revocation hearing immediately following appellant’s bench trial in
18-305.
According to the transcript contained in our record on appeal, at the conclusion of
the revocation hearing, the circuit court orally found appellant in violation of her terms and
conditions of probation.
Well, she tested positive for the alcohol and she denied it, then she I don’t know what happened but she did test positive, and she was arrested for the careless driving, the DWI, and the refusal, and she was found guilty of that in District Court, appealed it, and has been found guilty again and has a right to appeal that too. And she failed to report. Now I can see maybe the confusion on this failing to report, but I don’t see any confusion on having alcohol in the middle of the day. I don’t see that. I believe that they’ve proved that on the petition to revoke that she violated the rules of probation.
(Emphasis added.)
However, on January 9, 2019, despite our record containing a hearing transcript that
purports to find appellant guilty, the circuit court again entered a sentencing order indicating 4 that appellant voluntarily, intelligently, and knowingly entered a guilty plea to the revocation
violations on each of the four charges. The sentencing order reflects that appellant was
sentenced to serve eighteen months’ imprisonment for the charges of breaking or entering
and theft of property.
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Cite as 2019 Ark. App. 538 ARKANSAS COURT OF APPEALS Digitally signed by Elizabeth Perry Date: 2022.08.08 10:56:32 -05'00' DIVISION II Adobe Acrobat version: No. CR-19-374 2022.001.20169 Opinion Delivered: November 13, 2019
ANITA ROWTON APPEAL FROM THE LONOKE APPELLANT COUNTY CIRCUIT COURT [NOS. 43CR-13-496 & 43CR-18-305] V. HONORABLE BARBARA ELMORE, JUDGE STATE OF ARKANSAS APPELLEE REMANDED TO SETTLE AND SUPPLEMENT THE RECORD; REBRIEFING ORDERED
KENNETH S. HIXSON, Judge
Appellant Anita Rowton was serving probation in case number 43CR-13-496
(hereinafter referred to as 13-496). While on probation, appellant was involved in a motor-
vehicle accident, wherein she was cited with driving while intoxicated (DWI), refusal to
submit to a chemical test, and careless and prohibited driving. Appellant was convicted of
all three offenses in a bench trial in the Lonoke County Circuit Court in case number
43CR-18-305 (hereinafter referred to as 18-305). Appellant was sentenced to an aggregate
term of twelve months in the county jail. Immediately following the bench trial, appellant
was tried and found guilty of violating the terms and conditions of her probation in 13-496.
The circuit court sentenced appellant to serve an aggregate term of eighteen months’
imprisonment. On appeal, appellant contends that there was insufficient evidence to convict
her of DWI in 18-305 and that there was insufficient evidence that she violated the terms and conditions of her probation in 13-496. However, we are unable to reach the merits at
this time. We remand to settle and supplement the record, and we order rebriefing after
the record is settled and supplemented.
I. Relevant Facts
A. Case Number 43CR-18-305
On February 2, 2018, appellant’s vehicle ran off the road when she was driving
around a sharp curve. The front air bags deployed, and the vehicle was left inoperable and
wedged on top of a tree stump. Law enforcement arrived and observed her behavior at the
scene. 1 The officer testified that appellant was generally disoriented, incoherent, and had
slurred speech. Appellant was transported to the sheriff’s department where she was given
a breathalyzer test. Appellant tested 0.00%. The officer then requested that appellant submit
to a urinalysis, and appellant refused. Appellant was arrested and charged with DWI in
violation of Arkansas Code Annotated section 5-65-103 (Repl. 2016), refusal to submit to
chemical test in violation of Arkansas Code Annotated section 5-65-205, and careless and
prohibited driving in violation of Arkansas Code Annotated section 27-51-104. The circuit
court held a bench trial on December 5, 2018.
According to appellant’s statement of the case in her brief on appeal, she was found
guilty by the Lonoke County District Court, and she appealed to the circuit court.
1 The State introduced into evidence the officer’s dash-camera video. This video was played for the trial court, and the State contended that it was evidence of appellant’s impairment. Although the video is included as an exhibit in our record, it is not contained in appellant’s addendum as required. See Ark. Sup. Ct. R. 4-2(a)(8)(A)(i). 2 According to the transcript contained in our record on appeal, at the conclusion of the
bench trial, the circuit court orally found appellant guilty.
Now I’m going to take into consideration everything. I’m going to take into consideration what I saw on the video. And she was swaying. I -- I was beginning to sway with her. Okay? She was swaying. And she did have -- was slurred. And I just -- I don’t think her motor skills and her judgment was up to par. I believe that those combinations of everything, if you take into combination everything -- her statement, her reactions, her rambling on, consistently rambling on, talking when other people were trying to tell her not to talk, her behavior indicated to me that she was intoxicated. So I’m finding her guilty.
Despite our record containing a circuit court trial transcript finding appellant guilty, on
January 9, 2019, the circuit court filed a sentencing order indicating that appellant
voluntarily, intelligently, and knowingly entered a guilty plea on each of the three charges.
The sentencing order reflects that appellant was sentenced to serve twelve months in the
county jail for DWI and three months in the county jail for refusal to submit to a chemical
test. Further, the circuit court did not check any box regarding whether it had found her
guilty or sentenced her on the charges, no sentence is listed for careless and prohibited
driving, the total time to be served for all offenses was left blank, and the circuit court
checked the box that this case was not an appeal from district court. Hence, the record on
appeal contains inconsistencies that must be settled as discussed below.
B. Case Number 43CR-13-496
On April 7, 2014, appellant pleaded guilty in the Lonoke County Circuit Court in
13-496 to breaking or entering in violation of Arkansas Code Annotated section 5-39-202,
theft of property in violation of Arkansas Code Annotated section 5-36-103(b)(3)(A), third-
degree escape in violation of Arkansas Code Annotated section 5-54-112, and public
intoxication in violation of Arkansas Code Annotated section 5-71-212. Appellant was 3 placed on probation for seventy-two months for the breaking-or-entering and theft-of-
property charges, twelve months for the third-degree-escape charge, and thirty days for the
public-intoxication charge.
On February 16, 2018, the State filed a petition to revoke appellant’s probation,
alleging that appellant had violated her terms and conditions of probation by failing to do
the following:
1. Defendant failed to report on 5/17/17.
2. Defendant was arrested for Careless Driving, DWI 1st and Refusal to Submit to Chemical Test on 2/3/18.
3. Defendant tested positive for alcohol on 5/18/17.
4. Defendant was not truthful when she denied consuming alcohol on 5/18/17.
The circuit court held a revocation hearing immediately following appellant’s bench trial in
18-305.
According to the transcript contained in our record on appeal, at the conclusion of
the revocation hearing, the circuit court orally found appellant in violation of her terms and
conditions of probation.
Well, she tested positive for the alcohol and she denied it, then she I don’t know what happened but she did test positive, and she was arrested for the careless driving, the DWI, and the refusal, and she was found guilty of that in District Court, appealed it, and has been found guilty again and has a right to appeal that too. And she failed to report. Now I can see maybe the confusion on this failing to report, but I don’t see any confusion on having alcohol in the middle of the day. I don’t see that. I believe that they’ve proved that on the petition to revoke that she violated the rules of probation.
(Emphasis added.)
However, on January 9, 2019, despite our record containing a hearing transcript that
purports to find appellant guilty, the circuit court again entered a sentencing order indicating 4 that appellant voluntarily, intelligently, and knowingly entered a guilty plea to the revocation
violations on each of the four charges. The sentencing order reflects that appellant was
sentenced to serve eighteen months’ imprisonment for the charges of breaking or entering
and theft of property. The sentencing order additionally reflects that appellant was
sentenced to serve twelve months’ imprisonment for third-degree escape and one-month
imprisonment for public intoxication. Thus, because the sentences were to be served
concurrent, appellant was sentenced to serve a total of eighteen months’ imprisonment. As
in 18-305 above, the record on appeal contains inconsistencies that must be settled as
discussed below.
II. Jurisdictional and Procedural Issues
Unfortunately, we are unable to address the merits of appellant’s points on appeal at
this time due to several jurisdictional and procedural issues. In 18-305, our record on appeal
is inconsistent, and we are unable to determine our jurisdiction to review the merits of
appellant’s arguments on appeal. First, the sentencing order indicates that this case is not an
appeal from district court. However, our record contains certified copies of the district court
docket sheets in which it appears that appellant was found guilty of all three charges. That
said, our record does not contain evidence of any of the other documents enumerated in
Arkansas Rule of Criminal Procedure 36(c) that are necessary to perfect an appeal. See also
Latham v. State, 2019 Ark. App. 323, 578 S.W.3d 732. Further, the circuit court did not
check any box on the sentencing order regarding whether it had found appellant guilty or
sentenced her on the charges, no sentence is listed for careless and prohibited driving, and
the total time to be served for all offenses was left blank. Finally, despite our record
5 containing a trial transcript, the sentencing order indicates that appellant voluntarily,
intelligently, and knowingly entered a guilty plea on each of the three charges.
In 13-496, despite our record containing a revocation-hearing transcript that
purports to find appellant guilty, the circuit court entered a sentencing order indicating that
appellant voluntarily, intelligently, and knowingly entered a guilty plea to the revocation
violations on each of the four charges. Thus, it is unclear to this court whether the circuit
court found that appellant violated the terms and conditions of her probation or whether
appellant pled guilty to the violation. Moreover, the circuit court did not check any box
on the sentencing order regarding whether it had found her guilty or sentenced her on the
charges.
Because our record on appeal is inconsistent with respect to whether 18-305
originated in district court and whether appellant entered guilty pleas in 18-305 and 13-496
(each issue has direct implications to the jurisdiction of this court), we must remand for the
circuit court to settle and supplement the record within thirty days of the date of this order.
See Hart v. State, 2017 Ark. App. 130; Newton v. State, 2015 Ark. App. 375. We also direct
the circuit court to correct the sentencing orders in both cases. Upon correction and
supplementation of the record, appellant shall have fifteen days in which to file a substituted
abstract, addendum, and brief. See Ark. Sup. Ct. R. 4-2(b)(3). The State may revise or
supplement its brief within fifteen days of the filing of appellant’s brief or may rely on its
previously filed brief. We encourage appellant’s counsel to review Rule 4-2 to ensure that
the substituted brief complies with the rule and that no additional deficiencies are present.
6 Remanded to settle and supplement the record; rebriefing ordered.
ABRAMSON and VIRDEN, JJ., agree.
Robert M. “Robby” Golden, for appellant.
Leslie Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.