Johns v. State

2014 Ark. App. 560, 444 S.W.3d 873, 2014 Ark. App. LEXIS 779
CourtCourt of Appeals of Arkansas
DecidedOctober 22, 2014
DocketCR-14-11
StatusPublished

This text of 2014 Ark. App. 560 (Johns 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
Johns v. State, 2014 Ark. App. 560, 444 S.W.3d 873, 2014 Ark. App. LEXIS 779 (Ark. Ct. App. 2014).

Opinion

PHILLIP T. WHITEAKER, Judge.

| T Appellant Jonathan Johns was charged by felony information with one count of maintaining drug premises, a Class C felony; one count of possession of less than two grams of a controlled substance, a Class D felony; and one count of possession of drug paraphernalia, also a Class D felony. The information also reflected that Johns, who had been previously convicted of four or more felony offenses, was subject to the sentence-enhancement provisions of Arkansas Code Annotated section 5-4-501(b) (Repl.2006). Johns waived his right to a jury trial, and the Pulaski County Circuit Court found him guilty of the two Class D felonies. He was acquitted of maintaining a drug premises. After a separate .sentencing hearing, the court sentenced Johns to three years on each count, to be served concurrently. On appeal, Johns asserts that the written jury-waiver form he filled out was ^invalid because the waiver did not specifically state that he was facing habitual-offender sentencing on each of the charges. 1 We find no error and affirm.

The right to be tried by a jury is guaranteed under the Sixth Amendment to the United States Constitution and article 2, section 7, of the Arkansas Constitution. When a defendant exercises his constitutional right to be tried by a jury, then the jury in a separate proceeding fixes the appropriate statutory punishment. See Ark.Code Ann. § 5-4-103(a) (Repl.2006).

While the constitution guarantees a right to be tried by a jury, there is no constitutional right to be sentenced by a jury. Bunch v. State, 344 Ark. 730, 738, 43 S.W.3d 132, 137 (2001) (citing Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988)). A defendant may, moreover, waive his constitutional right to be tried by a jury. Ark. R.Crim. P. 31.2. When a defendant waives his right to be tried by a jury, he waives his statutory right to be sentenced by a jury. 2 See Ark.Code Ann. § 5-4-103(b)(2) (Repl.2006) (“The court shall fix punishment as authorized in this chapter in any case in which ... [t]he defendant’s guilt is tried by the court.”). In order for one’s jury-trial right to be abrogated, there must be a showing of a knowing and voluntary waiver made and | ¡¡demonstrated on the record. Medlock v. State, 328 Ark. 229, 942 S.W.2d 861 (1997); Williams v. State, 65 Ark.App. 176, 986 S.W.2d 123 (1999). Absent a waiver, it is generally improper for a circuit court to assess a defendant’s sentence in place of a jury. Davenport v. State, 2013 Ark. 508, at 7, 431 S.W.3d 204, 208 (citing Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975); Redding v. State, 254 Ark. 317, 493 S.W.2d 116 (1973)). In order for a defendant to waive his right to a jury trial, the circuit court must ensure that the waiver is knowingly, intelligently, and voluntarily made. Barrow v. State, 2010 Ark. App. 589, 377 S.W.3d 481.

Rule 31.2 also requires that there must be a verbatim record of any proceedings at which the defendant waives his right in person or through counsel that must be preserved. Barrow, supra. Here, the circuit court made a verbatim record of the defendant’s written waiver. Johns executed a written waiver of his right to jury trial; the waiver form contained the following language:

I understand that I have a right to a jury trial where no verdict would be accepted unless all twelve jurors agreed. If the jury found me to be guilty of anything, I would have the right to have the jury set my punishment.
I waive my right to have a jury trial. I ask that the judge hear and weight [sic] the evidence and, after applying the law, make a decision if I am guilty of anything. If the judge finds me guilty, the judge sets my punishment.
I understand that I keep all of my other rights.

The form was signed by Johns, his defense attorney, the prosecuting attorney, and the judge.

Moreover, the circuit court made a verbatim record of Johns’s personal waiver of his right to jury trial in open court, addressing the waiver in the following colloquy at the omnibus hearing:

UCourt: In Case 12-3853, you are charged at count one with maintaining drug premises. That is a Class C felony which, upon conviction, would carry a punishment ranging from three years to thirty years in the state penitentiary and/or a $10,000 fíne.
At count two, you’re charged with possession of [a] controlled substance, cocaine, which, upon conviction, would carry a punishment of up to fifteen years in the state penitentiary and/or a $10,000 fine.
At count three, you are charged with possession of drug paraphernalia, which, upon conviction, would carry a punishment of ranging up to fifteen years in the state penitentiary and/or a $10,000 fine.
Do you understand the charges against you and the punishment range, sir?
Johns: Yes, sir.
Court: You have the right to a jury trial where no verdict would be accepted . unless all twelve jurors agreed. If the jury found you guilty of anything, you would have the right for the jury to set your punishment. By waiving your right to a jury trial, you ask that the judge hear the evidence against you, weigh the evidence, and apply the law to it and determine whether you are guilty of anything or not.
If the judge finds you guilty, then the judge will set your punishment. You keep all your other rights. Do you understand that?
Johns: Yes, sir.
Court: Does the State have any objection to the jury waiver in 2012-3853?
State: No, Your Honor.
COURT: The court finds, Mr. Johns, you have knowingly, voluntarily, and intelligently waived jury trial in Case 12-3853 and the court accepts your jury waiver.

Despite the verbatim record,' Johns argues that his jury waiver was defective because the written waiver form did not specifically spell out the fact that he was subject to ^sentencing as a habitual offender. Johns acknowledges that a criminal defendant in Arkansas has neither a federal nor a state constitutional right to be sentenced by a jury. See Bunch, supra; Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960).

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Related

Spaziano v. Florida
468 U.S. 447 (Supreme Court, 1984)
Blakely v. Washington
542 U.S. 296 (Supreme Court, 2004)
Bunch v. State
43 S.W.3d 132 (Supreme Court of Arkansas, 2001)
Brock v. State
204 S.W.3d 562 (Court of Appeals of Arkansas, 2005)
State v. Freeman
846 S.W.2d 660 (Supreme Court of Arkansas, 1993)
Scherrer v. State
742 S.W.2d 877 (Supreme Court of Arkansas, 1988)
Barnes v. State
528 S.W.2d 370 (Supreme Court of Arkansas, 1975)
Medlock v. State
942 S.W.2d 861 (Supreme Court of Arkansas, 1997)
Finch v. State
556 S.W.2d 434 (Supreme Court of Arkansas, 1977)
Froman v. State
339 S.W.2d 601 (Supreme Court of Arkansas, 1960)
Calnan v. State
841 S.W.2d 593 (Supreme Court of Arkansas, 1992)
Redding v. State
493 S.W.2d 116 (Supreme Court of Arkansas, 1973)
Davenport v. State
2013 Ark. 508 (Supreme Court of Arkansas, 2013)
Barrow v. State
377 S.W.3d 481 (Court of Appeals of Arkansas, 2010)
Williams v. State
986 S.W.2d 123 (Court of Appeals of Arkansas, 1999)

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Bluebook (online)
2014 Ark. App. 560, 444 S.W.3d 873, 2014 Ark. App. LEXIS 779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johns-v-state-arkctapp-2014.