Garduno-Trejo v. State

379 S.W.3d 692, 2010 Ark. App. 779, 2010 Ark. App. LEXIS 812
CourtCourt of Appeals of Arkansas
DecidedNovember 17, 2010
DocketNo. CA CR 10-168
StatusPublished
Cited by5 cases

This text of 379 S.W.3d 692 (Garduno-Trejo v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garduno-Trejo v. State, 379 S.W.3d 692, 2010 Ark. App. 779, 2010 Ark. App. LEXIS 812 (Ark. Ct. App. 2010).

Opinion

RITA W. GRUBER, Judge.

| TIsmael Garduno-Trejo brings this appeal from an order by the Circuit Court of Benton County that granted petitions by the State to revoke a suspended sentence for delivery of a controlled substance, a Class Y felony, and a supervised probation for possession of a controlled substance, a Class C felony. He contends on appeal that the circuit court erred 1) in basing the revocations upon conduct that occurred before the judgment and commitment order had been entered; and 2) in sentencing him to a term of imprisonment that exceeded the maximum allowable under Arkansas law. We reverse on the first point.

The State alleged in its petition for revocation of suspended sentence that Gardu-no-Trejo’s suspended imposition of sentence was entered on March 17, 2009, and that he violated its conditions as follows: he was arrested by federal officials for selling approximately one pound of methamphetamine to an informant on March 24, 2009, and 12methamphetamine and paraphernalia were found in his home after the arrest. The State alleged in its second petition that Garduno-Trejo’s suspended sentence or probation was entered on March 17, 2009, and that he violated conditions on March 24, 2009, by delivering methamphetamine. The circuit court granted the two petitions, and Garduno-Trejo was sentenced on each of the underlying drug offenses to forty years’ imprisonment to be followed by a ten-year suspended sentence.

The parties do not dispute that at a plea hearing on March 17, 2009, Garduno-Trejo pled guilty and was sentenced by the court to five years’ supervised probation on the Class C felony and ten years’ suspended imposition of sentence on the Class Y felony. Three documents were filed on the date of the hearing: all have an identical case number styled State v. Ismael Garduno-Trejo in the Benton County Circuit Court. A “Judgment and Disposition Order” in the case was filed on March 26, 2009.

The first document that was entered on March 17, 2009, entitled “Plea Agreement and Order,” is comprised of two parts. The first part reflects Garduno-Trejo’s agreement to plead guilty to the two drug charges, the prosecutor’s agreement to recommend concurrent sentences of five years’ supervised probation and ten years’ suspended imposition, and an assessment of court costs and a fine; the agreement is signed by Garduno-Trejo, his attorney, and the prosecutor. The second part of the document is entitled “Order”: it bears the judge’s signature under the statement “it is so ordered,” but nothing is marked on the form to show that “Defendant’s plea is rejected/accepted/noted/deferred” or “Defendant is sentenced ^pursuant to Plea Agreement (as is) (as modified).”

The second document entered on March 17, 2009, bears no separate title. It recites that Garduno-Trejo, “having entered a plea of guilty or having been found guilty” on March 17, 2009, for Class C possession of a controlled substance and the court “having suspended the imposition of sentence or having placed the defendant on probation” for five years, is ordered to abide by conditions listed in the document. One condition is that he not commit a criminal offense punishable by imprisonment; another is that he pay court costs, a $1000 fine, and other costs set forth in the document. Garduno-Trejo’s signature appears on this document. The agreement requires Garduno-Trejo not to violate any laws and to abide by every requirement set out in the court’s order, “included herein as if set out verbatim.” The document was signed by Garduno-Trejo.

The final document entered on March 17, 2009, a “Suspended Sentence Agreement,” states that Garduno-Trejo was sentenced on March 17, 2009, to ten years’ suspended imposition of sentence conditioned upon good behavior. Like the second document, it requires that Garduno-Trejo not violate any laws, requires that he abide by every requirement of the court’s order “included herein,” and bears signatures of the judge, Garduno-Trejo, and his attorney.

A “Judgment and Disposition Order” was filed on March 26, 2009. It reflects that Garduno-Trejo appeared in court on March 17, 2009, on the two drug offenses and was advised of the effect of a guilty plea. It states that he “entered a plea” to each offense and was |4sentenced by the court to the respective sentences of five years’ supervised probation and ten years’ suspended imposition of sentence, the sentences to run concurrently. The issue we must decide is whether the suspended sentence and probation were in effect on March 24, 2009, the date that their conditions were violated. We hold that they were not.

The State asserts that this case is governed by Richardson v. State, 85 Ark.App. 347, 157 S.W.3d 536 (2004), where we rejected the appellant’s argument that the trial court was without jurisdiction to revoke his suspended sentence before the period of suspension began. Richardson did not report as scheduled, eventually was caught after fleeing from officers, and was brought back before the court on a petition to revoke the suspended imposition of sentence that had been filed on January 22, 2003. We held that the period of suspension commenced to run on the day it was imposed, January 15, and that Richardson’s failure to surrender was a violation of the good-behavior and law-abiding conditions for which he had signed.

We agree with Garduno-Trejo that entry of judgment was never an issue in Richardson. There, the appellant entered two guilty pleas on January 15, 2003, was sentenced to eleven years’ imprisonment on the first offense, and was given ten years’ suspended imposition of sentence on the second; on the same date he signed written terms and conditions of the suspended sentence. We stated, “After the trial court accepted appellant’s guilty pleas and sentenced him, it allowed him to remain out of custody until the following Monday morning, January 20, 2003, at which time he was to report to the sheriff to begin serving his sentences.” |585 Ark. App. 347, 349, 157 S.W.3d 536, 538. Richardson is not analogous to the present case.

The State also asserts that Garduno-Trejo, like the appellant in Ainsworth v. State, 367 Ark. 353, 240 S.W.3d 105 (2006), cannot show prejudice because he had signed and acknowledged the condition of his suspended sentence and probation. The appellant in Ainsworth signed a plea agreement on June 26, 2001, admitting to two criminal charges; the circuit court accepted the plea agreement, sentenced him to five years’ probation for each count, fined him on the conspiracy count, imposed court costs and sentenced him to eighty hours of community service. Apparently, no judgment and disposition order was entered; the only records reflecting the oral pronouncement of the sentence were the plea agreement, a criminal docket sheet, and a circuit court time-pay sheet. The appellant met with his probation officer during 2001. In September 2002 a petition to revoke probation was filed against him; he was eventually arrested and detained for three weeks in July 2004. He later made some payments toward his fines, but in August 2004 and in 2005 he filed motions to dismiss the revocation petition and all criminal proceedings.

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Cite This Page — Counsel Stack

Bluebook (online)
379 S.W.3d 692, 2010 Ark. App. 779, 2010 Ark. App. LEXIS 812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garduno-trejo-v-state-arkctapp-2010.