Bobby Law v. State of Arkansas

2020 Ark. App. 39

• Court: Court of Appeals of Arkansas
• Decided: January 22, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 39 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.08.10 12:30:27 DIVISION IV -05'00' No. CR-19-401 Adobe Acrobat version: 2022.001.20169 Opinion Delivered January 22, 2020 BOBBY LAW APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTH V. DIVISION [NO. 60CR-16-4401] STATE OF ARKANSAS APPELLEE HONORABLE WENDELL GRIFFEN, JUDGE

AFFIRMED

N. MARK KLAPPENBACH, Judge

Appellant Bobby Law pleaded no contest to first-degree battery. The charges related

to serious injuries suffered by Heather Sandefur when Law’s vehicle collided with

Sandefur’s. Law appeals the circuit court’s denial of his motion to continue the sentencing

hearing. Law requested the continuance on the day of the hearing because a character

witness (Norman Clifton) was unable to attend. Law contends that the circuit court’s denial

of his motion constituted an abuse of discretion. We affirm.

The guiding legal principles are well settled. Arkansas Rule of Criminal Procedure

27.3 (2019) provides that “[t]he court shall grant a continuance only upon a showing of

good cause and only for so long as is necessary, taking into account not only the request or

consent of the prosecuting attorney or defense counsel, but also the public interest in prompt

disposition of the case.” In deciding whether to grant or deny a motion for a continuance

to secure the presence of a witness, the circuit court considers (1) the diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the

attendance of the witness in the event of a postponement; and (4) the filing of an affidavit,

stating not only what facts the witness would prove but also that the affiant believes them

to be true. Davis v. State, 2017 Ark. App. 496, 532 S.W.3d 589. We will not reverse the

circuit court’s decision absent a clear abuse of discretion, which is a high threshold that does

not simply require error in the circuit court’s decision but rather requires the appellant to

show that the circuit court acted improvidently, thoughtlessly, or without due

consideration. Hill v. State, 2015 Ark. App. 587, 473 S.W.3d 556. An appellant must also

demonstrate that as a result of the ruling on the motion for a continuance, he suffered

prejudice that amounts to a denial of justice. See Thomas v. State, 370 Ark. 70, 257 S.W.3d

92 (2007).

In March 2016, Law caused the two-car crash that seriously and permanently injured

Sandefur. Law was charged with battery, driving while intoxicated, refusal to submit to

chemical testing, and possession of marijuana, with enhancements due to his being a habitual

criminal. The case was set for an October 4, 2018 bench trial. That day, Law agreed to plead

no contest to first-degree battery, the State presented no evidence on the driving-while-

intoxicated charge, and the State nolle prossed the remaining counts. The circuit court

ordered a presentencing report and set a sentencing hearing for November 5, 2018. On that

date, Law moved for a continuance because his attorney had “some issues with the

presentence.” The State did not object. The circuit court reset sentencing for December 6,

2018, at 8:30 a.m. but apologized to the members of the victim’s family for having to

2 reschedule, assuring them that “we are going to get it done on the 6th of December and

that’s going to happen.”

At the December 6 hearing, Law’s attorney informed the circuit court that he had a

letter from Norman Clifton, Law’s employer, who was unavailable to testify as a character

witness that day. Defense counsel said that he would much rather have Clifton present, and

he had concerns that there were errors in the presentence report, so counsel requested a

continuance. The State objected, noting that the victim was present and the court had

informed everyone that sentencing would take place on December 6. The circuit court

denied the motion for a continuance.

Sandefur testified how the accident, the terrible injuries she suffered, the

hospitalization and surgeries that were required, and the physical and emotional impacts

continued to affect her life. Law testified on his own behalf, apologizing to Sandefur and

explaining that he too was seriously injured in the wreck and could not work for a long

time. Law said that he was presently doing remodeling work for Norman Clifton and for

Michael Hansberry. Law admitted that he had some prior convictions and brushes with the

law, but he maintained that his life was back on track.

Quinshunta Hughes, Law’s girlfriend, testified that she depended on Law, that they

did everything together, that she had health problems, and that Law took good care of her

when she was unwell. According to Hughes, Mr. Clifton spoke highly of Law. She said

Law was not lazy and took temporary jobs when he could, and she asked that he not be

taken away from her.

3 Defense counsel tendered Clifton’s emailed letter into evidence; the State did not

object. The circuit court admitted the November 2, 2018 emailed letter:

I am writing on behalf of Bobby Law for the purpose of being a character witness for him. Bobby worked for me last year for approx. 6 months until I ran out of work.

Bobby was always on time, a good conscience [sic] worker, plenty willing to be of help in any work we needed none [sic].

I had lost contact with him, as I picked up some jobs that he could do if he could be available for work now I could put him back to work.

I ask for any leniency you might be able to extend to him.

The possible punishment range was five to twenty years. The circuit court considered the

severity of harm to Sandefur, Law’s criminal history, the fact that Law was on parole when

this crime was committed, and Law’s sincere apology. The circuit court sentenced Law to

fifteen years in prison, which it deemed “fair and reasonable,” to be followed by five years

of suspended imposition of sentence. This appeal followed.

Law argues that the circuit court abused its discretion by not continuing the

sentencing hearing until Clifton could be available to testify as a character witness. Law

argues that Clifton’s testimony would have established that Law could have made a

contribution to society rather than be a burden as a prison inmate. We disagree that Law

has demonstrated an abuse of the circuit court’s discretion or resulting prejudice.

Law had already been given a one-month continuance and was informed that

sentencing was going to happen at the reset date. Law readily admits that he failed to present

an affidavit, failed to demonstrate diligence in getting Clifton to appear, and failed to

demonstrate the likelihood that Clifton could be at another hearing if a continuance were

4 granted. Even so, Law and his girlfriend testified about his work for Clifton and Clifton’s

good opinion of him, and Clifton’s email was admitted into evidence giving voice to

Clifton’s positive comments. Law cannot demonstrate resulting prejudice because the

information he sought to elicit from the absent witness was introduced at the sentencing

hearing. See Wilson v. State, 320 Ark. 142, 895 S.W.2d 524 (1995).

Affirmed.

VAUGHT and HIXSON, JJ., agree.

William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender,

for appellant.

Leslie Rutledge, Att’y Gen., by: Michael Zangari, Ass’t Att’y Gen., for appellee.