Harness v. State

101 S.W.3d 235, 352 Ark. 335, 2003 Ark. LEXIS 151
CourtSupreme Court of Arkansas
DecidedMarch 20, 2003
DocketCR 02-452
StatusPublished
Cited by58 cases

This text of 101 S.W.3d 235 (Harness v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harness v. State, 101 S.W.3d 235, 352 Ark. 335, 2003 Ark. LEXIS 151 (Ark. 2003).

Opinion

Annabelle Clinton Harness Imber, Justice.

Appellant Kenneth Roy Harness pleaded guilty to one count of manufacturing methamphetamine and to two counts of possession of drug paraphernalia. In an amended judgment and commitment order filed on March 30, 2001, the circuit court sentenced him to a term of twenty years’ imprisonment and suspended the imposition of sentence as to an additional term of twenty years. Based on a violation prior to his incarceration, the trial court revoked the suspended portion of Mr. Harness’s sentence and sentenced him to a term of thirty years’ imprisonment. His only point on appeal is that the trial court did not have the power to revoke the suspended portion of his sentence prior to the commencement of the period of suspension. We agree and reinstate the original sentence as modified.

The facts are not in dispute. Upon sentencing, Mr. Harness was not instructed to report immediately to the Arkansas Department of Correction. Instead, he was placed under a $20,000 ADC bond and instructed to call the ADC each morning at 6:00 a.m. and surrender to the ADC when informed that it had room for him. Mr. Harness called in each morning from February 23, 2001, through March 6, 2001, except on February 28. On March 6, 2001, the ADC advised the Crawford County jail administrator that Mr. Harness should surrender at 5:00 a.m. the next morning, March 7, 2001. Mr. Harness did not surrender, and a warrant was issued for his arrest on March 14, 2001. On September 11, 2001, Mr. Harness was arrested in Utah, where he was working under an assumed name, and then returned to Arkansas.

After a hearing, the circuit court revoked Mr. Harness’s suspended sentence and resentenced him to a term of thirty years’ imprisonment in an amended judgment and commitment order filed on January 1-6, 2002. Mr. Harness filed a motion for reconsideration alleging that the original sentence was illegal because it was longer than the statutory maximum, that the circuit court was without the power to revoke the suspended portion of his sentence prior to the commencement of the period of suspension, and that the revocation violated his due-process rights. The circuit court denied his motion for reconsideration. The Arkansas Court of Appeals certified Mr. Harness’s appeal to this court because it presents an issue of first impression involving statutory construction. Thus, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(l), (2), (5) (2002).

Mr. Harness does not challenge his conviction or the lawfulness of his apprehension. His only challenge is to the propriety of the circuit court’s revocation of the suspended portion of his sentence. First, he contends that a circuit court does not have the power to revoke a suspended sentence prior to the commencement of the period of suspension. In the alternative, he presents a procedural due-process argument contending that he did not receive fair warning or other notice that the violation of a condition of suspension prior to the commencement of'his suspended sentence could lead to its revocation.

I. The March 30, 2001 Amended Judgment and Commitment Order

As an initial matter, the sentence imposed in the March 30, 2001 amended judgment and commitment order is illegal in two respects. First, the original judgment reflects a sentence of forty years’ imprisonment, as well as a twenty-year suspended imposition of sentence, for a total of sixty years — a sentence not authorized for a class Y felony. Second, because the suspended portion of the sentence requires Mr. Harness to report to a supervising officer, the sentence is in reality imprisonment followed by probation — a sentence specifically prohibited by statute. Even though neither Mr. Harness nor the State challenges the legality of the sentence on appeal, we treat problems of void or illegal sentences similar to problems of subject-matter jurisdiction and review them even if not raised on appeal and not objected to in the trial court. Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992); Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985).

Sentencing is entirely a matter of statute in Arkansas. Bunch v. State, 344 Ark. 730, 738, 43 S.W.3d 132, 137 (2001). “No defendant convicted of an offense shall be sentenced otherwise than in accordance with this chapter.” Ark. Code Ann. § 5-4-104(a) (Supp. 2001). A circuit court has jurisdiction to correct an illegal sentence even if it has been placed into execution. Meadows v. State, 324 Ark. 505, 922 S.W.2d 341 (1996); Bangs v. State, supra; Nelson v. State, 284 Ark. 156, 680 S.W.2d 91 (1984); Massey v. State, 278 Ark. 625, 648 S.W.2d 52 (1983). If we hold that a trial court’s sentence was illegal and that the error had nothing to do with guilt, but only with the illegal sentence, we can correct the sentence in lieu of remanding. Banks v. State, supra.

In Lewis v. State, this court set out the parameters for interpreting a trial court’s judgment. 336 Ark. 469, 986 S.W.2d 95 (1999). “Q]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. . . . [I]t is to be presumed that a defendant has been accorded a fair trial, and that the judgment of conviction is valid.” Id. at 475, 986 S.W.2d at 98. The March 30, 2001 amended judgment and commitment order imposed a sentence of 480 months’ imprisonment and a suspended sentence of 240 months, for a total of 720 months (or sixty years). The sentence for a Class Y felony is ten to forty years, or life. Ark. Code Ann. § 5-4-401(a)(1) (Repl. 1997). Mr. Harness’s attorney pointed out the illegal length of the sentence to the trial court. After a brief discussion among the judge, the prosecutor, and Mr. Harness’s attorney in which all agreed on the intended sentence, the judge ruled as follows: “[a]ll right, then it will be amended to reflect 20 year sentence with 20 suspended.” Based upon the record in this case, the clear intent of the circuit court and the understanding of both the State and the defendant was that Mr. Harness be sentenced to twenty years’ imprisonment, followed by a twenty-year suspended imposition of sentence.

One of the conditions imposed by the circuit court in connection with the twenty-year suspended sentence was as follows: “You must report as directed to a supervising officer and permit him or her to visit you in your residence, place of employment, or other property.” This reporting requirement makes the actual sentence imposed by the circuit court one of probation rather than suspension.

Section 5-4-104 of the Arkansas Criminal Code provides in relevant part as follows: “The court may sentence the defendant to a term of imprisonment and suspend imposition of sentence as to an additional term of imprisonment, but the court shall not sentence a defendant to imprisonment and place him on probation, except as authorized by § 5-4-304.” Ark. Code Ann. § 5-4-104(c)(3) (Supp. 2001).

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Cite This Page — Counsel Stack

Bluebook (online)
101 S.W.3d 235, 352 Ark. 335, 2003 Ark. LEXIS 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harness-v-state-ark-2003.