John Malone v. State of Arkansas

2025 Ark. App. 83

Opinion

Cite as 2025 Ark. App. 83 ARKANSAS COURT OF APPEALS DIVISION II No. CR-24-421

JOHN MALONE Opinion Delivered February 12, 2025

APPELLANT APPEAL FROM THE SALINE COUNTY CIRCUIT COURT V. [NO. 63CR-12-34]

HONORABLE BRENT DILLON STATE OF ARKANSAS HOUSTON, JUDGE

APPELLEE AFFIRMED

STEPHANIE POTTER BARRETT, Judge

Appellant John Malone appeals the revocation of his ten-year suspended sentence by

the Circuit Court of Saline County as well as his sentence as a habitual offender to thirty

years’ imprisonment in the Arkansas Division of Correction that was ordered to be served

consecutively to the sentence he received in a separate case for failure to appear.1 Malone

argues on appeal that the imposition of a thirty-year prison sentence is illegal in light of the

plain reading of the order and conditions of suspended imposition of sentence and the

maximum punishment range for the underlying offense under which the suspension was

imposed. We find no error and affirm.

1 The separate charge of failure to appear was heard during this revocation hearing but is not involved in this appeal. On September 7, 2012, Malone signed a plea statement pleading no contest to one

count of Class B felony theft, three counts of Class C felony theft, and four counts of Class

D felony theft. His pleas included the Class C felony theft committed on July 18, 2011. The

plea statement specifically informed Malone that his range of punishment for a Class C

felony was between three and thirty years. The plea statement also included a recommended

sentence of thirty years in prison followed by a ten-year suspended imposition of sentence.

On September 10, 2012, the trial court entered an “Order and Conditions of

Suspended Imposition of Sentence,” which stated that Malone was being sentenced to a total

of thirty years in prison for seven of the theft offenses to be served consecutively to a ten-year

suspended imposition of sentence (SIS) for one of the Class C felony thefts. This order

included the conditions that Malone must not commit a criminal offense punishable by

imprisonment and that he pay $39,983.84 in restitution in $305 monthly payments

beginning sixty days after his release from prison. As is relevant to Malone’s point on appeal,

this order also contained the following provision:

If the Court revokes your suspended imposition of sentence for you violating a condition, it may impose on you a sentence of not less than 3 years nor more than 10 years in the Arkansas Department of Correction and or a fine of up to $10,000.[2]

At the bottom of this order, Malone signed the following acknowledgement:

I have received a copy of the conditions and I understand that if I violate any of the conditions set out in this agreement, the court can revoke my suspension, and impose

2 Ten years is the maximum statutory sentencing range for a Class C felony under normal circumstances, but because Malone was charged and ultimately convicted as a habitual offender with four or more prior felonies, this sentencing range in the order should have said three to thirty years instead of three to ten years.

2 any sentence on me that might have been imposed originally for the offense for which I was declared guilty.

(Emphasis added.)

On September 21, 2012, the trial court entered a sentencing order sentencing Malone

to thirty years in prison, to be served concurrently, for seven of the felony theft convictions.

The sentencing order also placed Malone on a ten-year SIS for the Class C felony theft

committed on July 18, 2011, and it ordered the SIS to be served consecutively to the prison

term.3 For every one of these offenses listed in the sentencing order, the box was checked

designating that Malone was being sentenced as a habitual offender under Ark Code Ann.

§ 5-4-401(b) (Repl. 2013).

On February 28, 2022, the State filed a petition to revoke Malone’s SIS, alleging that

he committed two additional thefts in 2018 and 2019 after his release from prison and that

Malone had failed to pay court-ordered restitution. A warrant for arrest pursuant to the

revocation petition was issued on March 1, 2022.4

3 As will be discussed, this SIS should have been ordered to run concurrently with the prison term as required by statute, and the trial court amended the sentencing order to reflect that it was to be served concurrently before it revoked Malone’s SIS in these revocation proceedings. 4 Although Malone’s SIS was not actually revoked until February 2023, which was after his SIS would have expired in September 2022, this is no impediment to the trial court’s jurisdiction and is not at issue on appeal. This is because Ark. Code Ann. § 16-93-308(f)(2) (Supp. 2023) provides that a court may revoke an SIS after the expiration of the period of the suspension if, before the expiration of the period, a warrant is issued for the defendant’s arrest for violation of the SIS. Here, a warrant for Malone’s arrest was issued in March 2022, which was before the SIS had expired.

3 Prior to the revocation hearing—on October 31, 2023—the State filed a motion to

amend sentence. In that motion, the State noted that the September 21, 2012 sentencing

order contained an illegal sentence because it ordered that Malone’s ten-year SIS run

consecutively to the thirty-year prison term. By statute, the SIS was required to run

concurrently with the prison term. Specifically, Ark. Code Ann. § 5-4-307(b)(2) (Supp. 2023)

provides that a period of a suspension runs concurrently with any term of prison to which the

defendant is or becomes subject to during the suspension. However, in the State’s motion,

it correctly stated that if a sentence is illegal, the trial court may correct the illegal sentence,

and the effect of amending an illegal sentence is not to nullify the entirety of the order. The

State cited Limbocker v. State, 2016 Ark. 415, 504 S.W.3d 592, which is almost directly on

point. In Limbocker, the supreme court faced the same situation as ours and, under similar

circumstances, held that it was proper for the trial court to amend and correct the original

sentencing order to reflect that the SIS is to run concurrently (rather than consecutively)

with the prison sentence and then revoke the SIS at the revocation proceedings once the

State had proved the violations.

The revocation hearing at which Malone appeared was held on February 6, 2024. At

the outset of the hearing, the trial court took up the State’s motion to amend sentence with

respect to the September 21, 2012 sentencing order that had illegally ordered Malone’s ten-

year SIS to run consecutively to his thirty-year prison sentence on the other charges. The trial

court agreed the sentences should have been concurrent, and it orally granted the State’s

motion to amend the prior sentencing order to reflect the same. Malone voiced no objection

4 to correcting the original sentencing order in this manner, and the revocation proceeding

commenced.5

At the revocation hearing, the evidence showed that Malone was released from prison

in February 2017. The State offered proof that, although Malone was supposed to be making

restitution payments, he was significantly behind on the restitution obligation. That State

also showed, and Malone acknowledged, that after he was released from prison, Malone

pleaded guilty to two more counts of theft committed in 2018 and 2019. Having heard this

evidence, the trial court announced that Malone had violated the conditions of his SIS.6

The hearing then proceeded to the sentencing phase, and the trial court announced it was

going to sentence Malone to the maximum sentence of thirty years in prison for the

revocation. Notably, Malone did not object then or at any other time below to the thirty-

year sentence announced and imposed by the trial court.

On February 7, 2024, the trial court entered an order revoking Malone’s SIS and

sentencing him as a habitual offender to thirty years in prison for that offense, i.e., the Class

C felony theft Malone had committed on July 18, 2011. An amended sentencing order to

the same effect was entered on February 15, 2024. Malone timely appealed.

5 The trial court formally entered an amended sentencing order the following day that corrected the illegal sentence and noted that Malone’s ten-year SIS would run concurrently with the thirty-year prison sentence on the other offenses. This amended order was entered prior to the order that revoked Malone’s SIS. 6 Again, Malone does not challenge these violations on appeal.

5 On appeal, Malone argues that his sentence is illegal because it exceeds the maximum

punishment range for the original offense. This court views an issue of a void or illegal

sentence as an issue of subject-matter jurisdiction in that it cannot be waived by the parties

and may be addressed for the first time on appeal. State v. Webb, 373 Ark. 65, 281 S.W.3d

273 (2008) (citing Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002); Bangs v. State, 310

Ark. 235, 835 S.W.2d 294 (1992)). A sentence is void or illegal when the trial court lacks

the authority to impose it. Cross v. State, 2009 Ark. 597, 357 S.W.3d 895. 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 remand. Harness v. State, 352 Ark.

335, 101 S.W.3d 235 (2003).

In Arkansas, sentencing is entirely a matter of statute. Donaldson v. State, 370 Ark. 3,

257 S.W.3d 74 (2007) (quoting Ark. Code Ann. § 5-4-104(a) (Repl. 2013) (“No defendant

convicted of an offense shall be sentenced otherwise than in accordance with this chapter.”)).

In stating this general rule, this court has consistently held that sentencing shall not be other

than in accordance with the statute in effect at the time of the commission of the crime.

Sullivan v. State, 366 Ark. 183, 234 S.W.3d 285 (2006). The general rule is that a sentence

imposed within the maximum term prescribed by law is not illegal on its face. McArty v.

State, 2020 Ark. 68, 594 S.W.3d 54. The petitioner seeking relief carries the burden of

demonstrating that his or her sentence was illegal. Rainer v. State, 2022 Ark. 159, at 3, 651

S.W.3d 713, 716. A circuit court has subject-matter jurisdiction to hear and determine cases

6 involving violations of criminal statutes, and generally, a sentence imposed within the

maximum term prescribed by law is not illegal on its face. Id.

Malone cites Ark. Code Ann. § 4-4-401(a)(4), which provides that the sentence for a

Class C felony shall not be less than three years nor more than ten years. However, Malone

completely ignores the fact that he was charged and sentenced as a habitual offender with

more than four prior felonies pursuant to Ark. Code Ann. § 5-4-501(b) (Supp. 2023). And

subdivision (b)(2)(D) of that statute provides that for a Class C felony, the habitual-offender

defendant is subject to a term of imprisonment of not less than three nor more than thirty

years. The criminal information filed in this case states that Malone is a habitual offender

with more than four prior convictions under section 5-4-501(b); the plea statement signed

by Malone stated that his range of punishment for a Class C felony is three to thirty years;

and the September 21, 2012 sentencing order that placed Malone on the ten-year SIS

expressly noted that he was sentenced as a habitual offender under section 5-4-501(b).

Clearly, under the habitual-offender guidelines under which Malone was charged and

convicted of the Class C felony, he could have originally been sentenced to thirty years in

prison. That being so, upon revocation, Malone could be sentenced to the maximum thirty-

year sentence because this was a sentence “that might have been imposed originally for the

offense of which he . . . was found guilty.” Ark. Code Ann. § 16-93-308(g)(1)(A). Therefore,

the thirty-year sentence was a legal sentence within the applicable statutory range of

punishment.

7 Malone next argues that the language in the trial court’s “Order and Conditions of

Suspended Imposition of Sentence” constrained the trial court to impose a maximum ten-

year prison sentence upon revocation of Malone’s SIS. In particular, paragraph 11 of the

order states:

If the Court revokes your suspended imposition of sentence for you violating a condition, it may impose on you a sentence of not less than 3 years nor more than 10 years in the Arkansas Department of Correction and or a fine of up to $10,000.

Malone argues, for the first time on appeal, that the trial court was bound by this paragraph

in this order. While it is unquestionably true that the issue of jurisdiction can be raised at

any time, we do not agree with Malone’s contention that the trial court lacked jurisdiction

in this matter. In Arkansas, the circuit court has subject-matter jurisdiction to try cases

involving the violation of criminal statutes and has the authority to impose or suspend

sentences and to revoke those suspended sentences. Ark. Code Ann. § 16-93-308(g)(1)(A);

Goldsmith v. State, 2023 Ark. App. 77, 660 S.W.3d 858. In the instant case, the circuit court

clearly had jurisdiction over the subject matter of the revocation hearing, and Malone was

properly before the court. Banning v. State, 22 Ark. App. 144, 737 S.W.2d 167 (1987). Here,

because Malone was a habitual offender with four or more previous felony convictions, he

was subject to a maximum sentence of thirty years’ imprisonment for his conviction for Class

C felony theft of property. Ark. Code Ann. § 5-4-501(b)(1), (2)(d). When a trial court revokes

a defendant’s SIS and enters a judgment of conviction, it has discretion to impose any

sentence on the defendant that might have been imposed originally for the offense of which

he was found guilty. Ark. Code Ann. § 16-93-308(g)(1)(A); Goldsmith, supra. Thus, Malone’s

8 sentence is within the maximum term prescribed by law and is not illegal on its face. McArty,

2020 Ark. 68, 594 S.W.3d 54.

Malone also argues that he was not told by the trial court that his sentence could be

subject to a habitual criminal enhancement. A review of the record shows that the

conditions of his suspended sentence erroneously stated the offense was a Class C felony

with a range of punishment of three to ten years. However, the original sentencing order

indisputably shows that Malone was sentenced in count 4 pursuant to the habitual-offender

act. On September 5, 2012, the State filed an amended information setting forth that the

allegations of criminal offenses were subject to the habitual-offender act due to the

classification of the offense. On the same date as he pleaded no contest on count 4, Malone

also plead no contest to counts 1–3 and 5–8, two of which were Class C felonies. In those

cases, Malone was sentenced to thirty-year concurrent sentences on each pursuant to the

habitual-offender statue. Malone cannot dispute there was clear notice that he could be

sentenced to a term of imprisonment on a Class C felony on the basis of his sentence of

thirty years on his other two Class C felonies. Malone’s argument was not made to the trial

court, nor did Malone provide on appeal the transcript of his original sentencing hearing so

this court might determine the validity of his allegation. Further, he raised no objection

during the revocation hearing to the sentence being imposed by the trial court. Questions

regarding notice must be raised at trial to preserve the issue for appellate review. See

Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992) (acknowledging that a conviction

for an uncharged crime is a violation of due process but holding that the issue was waived

9 because it was being raised for the first time on appeal); Cheshire v. State, 80 Ark. App. 327,

95 S.W.3d 820 (2003) (acknowledging that due process requires a probationer to be

informed of the conditions of his probation he is alleged to have violated but holding that

the denial of that right must be presented to the trial court for it to be preserved for appellate

review).

In the present case, the thirty-year sentence imposed on Malone as a habitual offender

for a Class C felony was clearly a legal sentence, and because Malone’s claim here pertains

to notice and not the legality of the sentence, it is not preserved for review. As stated, Malone

was charged with a Class C felony as a habitual offender with more than four prior felonies,

and as such, he was subject by statute to a term of imprisonment of between three and thirty

years. Malone pleaded no contest and signed the plea statement that correctly reflected he

could be sentenced to between three and thirty years for the Class C felony. The sentencing

order entered after Malone’s no-contest plea plainly shows that he was sentenced for a Class

C felony as a habitual offender with more than four felonies. While it is true that the “Order

and Conditions of Suspended Imposition of Sentence” incorrectly reflects a sentencing

range of three to thirty years upon revocation, below that notation is an acknowledgement

signed by Malone stating, “I understand that if I violate any of the conditions set out in this

agreement, the court can revoke my suspension, and impose any sentence on me that might

have been imposed originally for the offense for which I was declared guilty.” This tracks

the language in Ark. Code Ann. § 16-93-308(g)(1(A), and the three- to thirty-year sentencing

range was reflected in Malone’s plea statement and is the correct sentencing range under the

10 applicable statute for habitual offenders. Because Malone received a legal sentence and he

is instead arguing here about improper notice, this claim is not preserved for review.

Malone’s last argument concerns his claim that any sentence imposed should have

been reduced by the fifty-three months he already served in prison from the time of his

convictions in September 2012 until his release in February 2017. Malone misconstrues the

applicable statute and is incorrect.

Arkansas Code Annotated section 16-93-308(g)(1) provides:

(A) If a court revokes a defendant’s suspension of sentence or probation, the court may enter a judgment of conviction and may impose any sentence on the defendant that might have been imposed originally for the offense of which he or she was found guilty.

(B) However, any sentence to pay a fine or of imprisonment, when combined with any previous fine or imprisonment imposed for the same offense, shall not exceed the limits of § 5-4-201 or § 5-4-401, or if applicable, § 5-4-501.

Here, the relevant sentencing statute is § 5-4-501 because Malone was sentenced as a habitual

offender, and as stated, the statutory range was three to thirty years. Prior to the revocation

of Malone’s probation for the Class C felony committed on July 18, 2011, Malone had not

received any imprisonment for that offense; he had been placed only on a suspension. Malone

did originally receive a thirty-year prison sentence for the other seven offenses to which he

pleaded no contest, and he spent fifty-three months in prison for those offenses. However, it

is improper under the statute to reduce Malone’s prison time for time served on those other

offenses because subdivision (g)(1)(B) plainly provides that any sentence of imprisonment

upon revocation, when combined with any previous imprisonment imposed for the same

11 offense, must not exceed statutory limits for that offense. Malone cites Walden v. State, 2014

Ark. 193, 433 S.W.3d 864, but that case is clearly distinguishable. In Walden, the appellant’s

maximum statutory exposure was twenty years in prison for a felony hot-check conviction,

and he was sentenced to three years in prison followed by an SIS, which was later revoked,

and he was sentenced to three years in prison upon revocation. When his probation was

again revoked on the same offense, the supreme court held that because Walden had already

served a total of six years in prison for that offense, the most he could be sentenced to upon

revocation was fourteen years. But Walden is of no help to Malone because here, Malone

had not served any prison time related to the Class C felony for which he was placed on an

SIS and that was now being revoked. Therefore, subdivision (g)(1)(B) was not triggered, and

the trial court could impose the statutory maximum prison term of thirty years.

Affirmed.

HIXSON and MURPHY, JJ., agree.

Nobles Law Firm, PLLC, by: Ethan C. Nobles, for appellant.

Tim Griffin, Att’y Gen., by: Jacob Jones, Ass’t Att’y Gen., for appellee.