Cite as 2025 Ark. App. 36 ARKANSAS COURT OF APPEALS DIVISION III No. CR-23-566
DAVID HIGHTOWER Opinion Delivered January 29, 2025 APPELLANT APPEAL FROM THE BENTON COUNTY CIRCUIT COURT V. [NO. 04CR-20-1044]
STATE OF ARKANSAS HONORABLE BRAD KARREN, JUDGE APPELLEE AFFIRMED AS MODIFIED
RAYMOND R. ABRAMSON, Judge
Pro se appellant David Hightower appeals the Benton County Circuit Court’s order
denying his postconviction motion to modify the no-contact order that was part of his plea
agreement in case number 04CR-20-1044. On appeal, Hightower argues the circuit court
lacked statutory authority to impose an extended postconviction no-contact order. We affirm
as modified.
In 2020, when Hightower was in custody at the Benton County Detention Center,
Leah Brasuell solicited him to “carry out a hit” on Tristan Tiarks. 1 When interviewed by
1 Tiarks had been sentenced to thirty years’ imprisonment for having assaulted, raped, and battered Brasuell’s three-year-old daughter. See Tiarks v. State, 2021 Ark. App. 325, 633 S.W.3d 788. police, Brasuell admitted that, at her direction, Hightower attempted to orchestrate the
beating of Tiarks “half to death” by other inmates.
Hightower subsequently was charged in Benton County Circuit Court case number
04CR-20-1044 with conspiracy to commit first-degree battery. He appeared before the circuit
court and pleaded guilty to this crime—along with several other pending charges—on April 6,
2021. As reflected in his signed plea documents, Hightower admitted he was guilty of Class
A felony conspiracy to commit first-degree battery in 04CR-20-1044; he had violated the
conditions imposed for multiple earlier probationary sentences; and, as charged in other
cases, he had committed commercial burglary, felon in possession, nonfinancial identity
fraud, twice dangerously fled from officers, and fifteen counts of forgery.
Hightower’s negotiated plea provided that he would be sentenced to serve a total of
twenty-five years’ imprisonment and that the circuit court would suspend imposition of his
sentence for some of his crimes, including for a twenty-year period for his conspiracy offense
in 04CR-20-1044. The terms and conditions imposed on his suspended sentence required,
in part, that Hightower have “[n]o contact with . . . Leah Brasuell” and “not associate with
persons who have felony criminal records[.]”
Following entry of his plea, Hightower filed a pro se petition on March 9, 2023, to
remove the condition of his suspended sentence that he have no contact with Brasuell.
Hightower filed an amended petition on March 20 in which he further argued that the
condition amounted to an unauthorized extended postconviction no-contact order in
violation of Arkansas Code Annotated section 5-4-106 (Supp. 2021).
2 The circuit court considered Hightower’s petition at a hearing on May 25, 2023.
Hightower called his defense attorney in the underlying case as a witness, but the circuit
court sustained hearsay objections after Hightower asked whether the State had represented
during plea negotiations that it would not object to the later removal of the condition
involving Brasuell.
Hightower did not assert any basis for permitting these out-of-court statements, and
the State asserted it was not amenable to his motion because he had agreed to this condition
as part of his plea. Further, the State argued another condition would still preclude contact
with Brasuell because she is a convicted felon, which rendered his motion moot. Hightower
reiterated that this condition of his suspended sentence was not authorized by Arkansas
Code Annotated section 5-4-106 because Brasuell was not the victim in the case, and the
conspiracy charge was not a covered offense.
At the hearing’s conclusion, the circuit court denied Hightower’s request to amend
the conditions of his suspended sentence and entered an order to that effect on June 5,
2023. Hightower has now filed a pro se appeal from the denial of his motion to remove the
condition that he have no contact with Brasuell imposed on his suspended sentence in
04CR-20-1044.
On appeal, Hightower couches his claims as eight separate points, but essentially it
boils down to two: (1) because Brasuell did not qualify as the victim for purposes of Ark.
Code Ann. § 5-4-106, this condition rendered his suspended sentence illegal, and the circuit
3 court lacked the authority to impose it; and (2) his defense attorney’s proposed testimony as
to the plea discussions regarding this condition was not hearsay.
We turn first to Hightower’s argument that the provision contained in his plea
agreement and sentencing order that he have no contact with Brasuell is an illegal sentence.
He maintains that this constitutes an extended postconviction no-contact order, which must
comport with the requirements provided in section 5-4-106 of the Arkansas Code. In
Arkansas, sentencing is entirely a matter of statute. See Ark. Code Ann. § 5-4-104 (Supp.
2021); Richie v. State, 2009 Ark. 602, 357 S.W.3d 909. We view an issue of a void or an illegal
sentence as one of subject-matter jurisdiction in that it cannot be waived by the parties and
may be addressed for the first time on appeal. Norton v. State, 2018 Ark. App. 507, 563
S.W.3d 584; Holmes-Childers v. State, 2016 Ark. App. 464, 504 S.W.3d 645. A sentence is
void or illegal when the circuit court lacks the authority to impose it. Holmes-Childers, supra.
The State argues that the no-contact provision is a condition of Hightower’s
suspended sentence, and “[a] circuit court’s power to impose terms and conditions of
suspension is established in Ark. Code Ann. § 5-4-303[.]” Harness v. State, 352 Ark. 335, 343,
101 S.W.3d 235, 241 (2003). Pursuant to Arkansas Code Annotated section 5-4-303(a)
(Supp. 2021), a circuit court is expressly authorized to “attach such conditions as are
reasonably necessary to assist the defendant in leading a law-abiding life” when it imposes a
suspended sentence. Specifically, section 5-4-303(c)(4) further denotes, as a condition of
suspended sentence, that a circuit court “may require that the defendant . . . [r]efrain from .
. . consorting with a designated person[.]” Ark. Code Ann. § 5-4-303(c)(4). Therefore, the
4 State maintains, the circuit court was clearly authorized to condition Hightower’s sentence
on him not consorting––that is, having contact––with Brasuell for the duration of his
twenty-year suspended sentence in case number 04CR-20-1044.
Having reviewed the record, we note that had the no-contact order been attached to
Hightower’s sentence, it would be an illegal sentence under section 5-4-106. As such, absent
any other statutory authority, the circuit court lacked the authority to include the no-contact
provisions for these convictions as an extended postconviction no-contact order in the
sentencing order, and Hightower’s argument has some merit. See Richie, supra (holding a
sentence of incarceration with a special condition that defendant complete a drug program
was an illegal sentence). However, we hold that the facts of this case are more akin to the
facts in Seamster v. State, 2009 Ark. 258, 308 S.W.3d 567, in which our supreme court held
that an order to complete a sex-offender treatment program (RSVP)was a condition of a
suspended sentence and not a condition of imprisonment.
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Cite as 2025 Ark. App. 36 ARKANSAS COURT OF APPEALS DIVISION III No. CR-23-566
DAVID HIGHTOWER Opinion Delivered January 29, 2025 APPELLANT APPEAL FROM THE BENTON COUNTY CIRCUIT COURT V. [NO. 04CR-20-1044]
STATE OF ARKANSAS HONORABLE BRAD KARREN, JUDGE APPELLEE AFFIRMED AS MODIFIED
RAYMOND R. ABRAMSON, Judge
Pro se appellant David Hightower appeals the Benton County Circuit Court’s order
denying his postconviction motion to modify the no-contact order that was part of his plea
agreement in case number 04CR-20-1044. On appeal, Hightower argues the circuit court
lacked statutory authority to impose an extended postconviction no-contact order. We affirm
as modified.
In 2020, when Hightower was in custody at the Benton County Detention Center,
Leah Brasuell solicited him to “carry out a hit” on Tristan Tiarks. 1 When interviewed by
1 Tiarks had been sentenced to thirty years’ imprisonment for having assaulted, raped, and battered Brasuell’s three-year-old daughter. See Tiarks v. State, 2021 Ark. App. 325, 633 S.W.3d 788. police, Brasuell admitted that, at her direction, Hightower attempted to orchestrate the
beating of Tiarks “half to death” by other inmates.
Hightower subsequently was charged in Benton County Circuit Court case number
04CR-20-1044 with conspiracy to commit first-degree battery. He appeared before the circuit
court and pleaded guilty to this crime—along with several other pending charges—on April 6,
2021. As reflected in his signed plea documents, Hightower admitted he was guilty of Class
A felony conspiracy to commit first-degree battery in 04CR-20-1044; he had violated the
conditions imposed for multiple earlier probationary sentences; and, as charged in other
cases, he had committed commercial burglary, felon in possession, nonfinancial identity
fraud, twice dangerously fled from officers, and fifteen counts of forgery.
Hightower’s negotiated plea provided that he would be sentenced to serve a total of
twenty-five years’ imprisonment and that the circuit court would suspend imposition of his
sentence for some of his crimes, including for a twenty-year period for his conspiracy offense
in 04CR-20-1044. The terms and conditions imposed on his suspended sentence required,
in part, that Hightower have “[n]o contact with . . . Leah Brasuell” and “not associate with
persons who have felony criminal records[.]”
Following entry of his plea, Hightower filed a pro se petition on March 9, 2023, to
remove the condition of his suspended sentence that he have no contact with Brasuell.
Hightower filed an amended petition on March 20 in which he further argued that the
condition amounted to an unauthorized extended postconviction no-contact order in
violation of Arkansas Code Annotated section 5-4-106 (Supp. 2021).
2 The circuit court considered Hightower’s petition at a hearing on May 25, 2023.
Hightower called his defense attorney in the underlying case as a witness, but the circuit
court sustained hearsay objections after Hightower asked whether the State had represented
during plea negotiations that it would not object to the later removal of the condition
involving Brasuell.
Hightower did not assert any basis for permitting these out-of-court statements, and
the State asserted it was not amenable to his motion because he had agreed to this condition
as part of his plea. Further, the State argued another condition would still preclude contact
with Brasuell because she is a convicted felon, which rendered his motion moot. Hightower
reiterated that this condition of his suspended sentence was not authorized by Arkansas
Code Annotated section 5-4-106 because Brasuell was not the victim in the case, and the
conspiracy charge was not a covered offense.
At the hearing’s conclusion, the circuit court denied Hightower’s request to amend
the conditions of his suspended sentence and entered an order to that effect on June 5,
2023. Hightower has now filed a pro se appeal from the denial of his motion to remove the
condition that he have no contact with Brasuell imposed on his suspended sentence in
04CR-20-1044.
On appeal, Hightower couches his claims as eight separate points, but essentially it
boils down to two: (1) because Brasuell did not qualify as the victim for purposes of Ark.
Code Ann. § 5-4-106, this condition rendered his suspended sentence illegal, and the circuit
3 court lacked the authority to impose it; and (2) his defense attorney’s proposed testimony as
to the plea discussions regarding this condition was not hearsay.
We turn first to Hightower’s argument that the provision contained in his plea
agreement and sentencing order that he have no contact with Brasuell is an illegal sentence.
He maintains that this constitutes an extended postconviction no-contact order, which must
comport with the requirements provided in section 5-4-106 of the Arkansas Code. In
Arkansas, sentencing is entirely a matter of statute. See Ark. Code Ann. § 5-4-104 (Supp.
2021); Richie v. State, 2009 Ark. 602, 357 S.W.3d 909. We view an issue of a void or an illegal
sentence as one of subject-matter jurisdiction in that it cannot be waived by the parties and
may be addressed for the first time on appeal. Norton v. State, 2018 Ark. App. 507, 563
S.W.3d 584; Holmes-Childers v. State, 2016 Ark. App. 464, 504 S.W.3d 645. A sentence is
void or illegal when the circuit court lacks the authority to impose it. Holmes-Childers, supra.
The State argues that the no-contact provision is a condition of Hightower’s
suspended sentence, and “[a] circuit court’s power to impose terms and conditions of
suspension is established in Ark. Code Ann. § 5-4-303[.]” Harness v. State, 352 Ark. 335, 343,
101 S.W.3d 235, 241 (2003). Pursuant to Arkansas Code Annotated section 5-4-303(a)
(Supp. 2021), a circuit court is expressly authorized to “attach such conditions as are
reasonably necessary to assist the defendant in leading a law-abiding life” when it imposes a
suspended sentence. Specifically, section 5-4-303(c)(4) further denotes, as a condition of
suspended sentence, that a circuit court “may require that the defendant . . . [r]efrain from .
. . consorting with a designated person[.]” Ark. Code Ann. § 5-4-303(c)(4). Therefore, the
4 State maintains, the circuit court was clearly authorized to condition Hightower’s sentence
on him not consorting––that is, having contact––with Brasuell for the duration of his
twenty-year suspended sentence in case number 04CR-20-1044.
Having reviewed the record, we note that had the no-contact order been attached to
Hightower’s sentence, it would be an illegal sentence under section 5-4-106. As such, absent
any other statutory authority, the circuit court lacked the authority to include the no-contact
provisions for these convictions as an extended postconviction no-contact order in the
sentencing order, and Hightower’s argument has some merit. See Richie, supra (holding a
sentence of incarceration with a special condition that defendant complete a drug program
was an illegal sentence). However, we hold that the facts of this case are more akin to the
facts in Seamster v. State, 2009 Ark. 258, 308 S.W.3d 567, in which our supreme court held
that an order to complete a sex-offender treatment program (RSVP)was a condition of a
suspended sentence and not a condition of imprisonment.
In Seamster, the defendant argued that the requirement to complete RSVP was not
included in the express conditions of his suspended imposition of sentence (SIS). The
supreme court noted that a section of the SIS agreement located immediately preceding
Seamster’s signed acknowledgment titled “Special Conditions” included the requirement
that he complete an aftercare program at the recommendation of the RSVP program. In
reviewing the record, the high court observed that the conclusion—that completion of RSVP
was a requirement of the SIS condition regarding the aftercare program—was reinforced by
the fact that Seamster’s signed plea agreement required him to complete RSVP.
5 Furthermore, the supreme court noted that the circuit court’s judgment and commitment
order included additional terms that listed the terms of the SIS, including the requirement
that Seamster complete the RSVP program prior to release. Seamster, 2009 Ark. 258, at 5–6,
308 S.W.3d at 570 (“[J]udgments are generally construed like other instruments and the
determinative factor is the intention of the court, gathered from the judgment itself and the
record, including the pleadings and the evidence.” (quoting Lewis v. State, 336 Ark. 469, 475,
986 S.W.2d 95, 98 (1999))).
Here, the SIS contract contains a provision at the end that states that Hightower
“shall abide by every requirement set out in the Court’s Order, which is incorporated by
reference herein as if set out verbatim.” The plea agreement includes the provision that
Hightower have no contact with Brasuell. The sentencing order refers to the “attached for
further orders” in the “Additional Info” space. The attachment was titled “Additional Terms
of Sentence.” We note that paragraphs 4 and 5 of the additional terms repeat the only two
“additional conditions” set forth in Hightower’s plea agreement: evaluation for alcohol and
substance abuse and no contact with Brasuell and Tiarks.
Under the reasoning in Seamster, we find that incorporation of the terms of the
sentencing order into the SIS contract would make the additional terms of sentence attached
to the order part of the contract, and the inclusion of the no-contact provision in the plea
agreement is further evidence that the provision is a condition of Hightower’s SIS.
Therefore, in the interest of judicial economy and because we hold that the no-contact order
6 is permissible under Arkansas Code Annotated section 5-4-303, we will clarify in lieu of
remanding it to the circuit court.
A circuit court may clearly place conditions on a defendant when the court suspends
the imposition of sentence or places the defendant on probation. Richie, 2009 Ark. 602, at
7, 357 S.W.3d at 913; Ark. Code Ann. § 5-4-303(a) (“If a court suspends imposition of
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.”).
Section 5-4-303(c)(4) expressly permits a prohibition on communicating with a specific
person: “If the court suspends imposition of sentence on a defendant or places him or her
on probation, as a condition of its order the court may require that the defendant . . . [r]efrain
from frequenting an unlawful or designated place or consorting with a designated person[.]”
Here, Hightower entered into a negotiated plea agreement that contained the
provision that he have no contact with Brasuell; we find that condition falls under the
requirements as set forth in Arkansas Code Annotated section 5-4-303 and is thereby
permissible. Because we hold that the no-contact provision is part of the conditions of
Hightower’s SIS in his conspiracy conviction, we affirm as modified to clarify.
For his remaining points, Hightower argues that the circuit court erred by sustaining
hearsay objections when he attempted to elicit testimony from his attorney about the parties’
plea discussions regarding the conditions of his suspended sentence. On appeal, Hightower
proposes that the testimony was not barred by the hearsay rule, but he waived these
7 evidentiary claims by failing to assert them during the hearing. See, e.g., Goins v. State, 2019
Ark. App. 11, at 7, 568 S.W.3d 300, 304. Accordingly, we affirm.
Affirmed as modified.
GLADWIN and THYER, JJ., agree.
David Hightower, pro se appellant.
Tim Griffin, Att’y Gen., by: Michael Zangari, Ass’t Att’y Gen., for appellee.