Owen Delance Watson v. State of Arkansas

2024 Ark. App. 277, 688 S.W.3d 175

• Court: Court of Appeals of Arkansas
• Decided: April 24, 2024
• Status: Published

Opinion

Cite as 2024 Ark. App. 277 ARKANSAS COURT OF APPEALS DIVISION II No. CR-23-496

Opinion Delivered April 24, 2024 OWEN DELANCE WATSON APPELLANT APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. 18CR-19-1291] V. HONORABLE RANDY F. PHILHOURS, STATE OF ARKANSAS JUDGE APPELLEE AFFIRMED; REMANDED TO CORRECT SENTENCING ORDERS

WENDY SCHOLTENS WOOD, Judge

On December 22, 2020, Owen Watson entered a negotiated guilty plea to first-degree

domestic battery (Class B felony) and first-degree terroristic threatening (Class D felony) and

was sentenced by the Crittenden County Circuit Court to 120 months’ suspended

imposition of sentence (SIS) for each offense. The State filed a petition to revoke the

suspended sentences. Following a revocation hearing, the circuit court entered a February

28, 2023 order revoking Watson’s SIS for first-degree domestic battery and sentencing him

to twenty years in prison for first-degree domestic battery. After learning at the revocation

hearing that the SIS initially imposed on the terroristic-threatening charge at the time of the

guilty plea exceeded the maximum statutory range, the circuit court did not revoke his SIS

for terroristic threatening but, instead, marked the sentencing order as “acquitted.” On

appeal, Watson argues that (1) the terroristic-threatening SIS following his guilty plea is illegal and should be modified or dismissed and (2) the revocation of his domestic-battery

SIS should be reversed. We affirm the revocation of Watson’s SIS for first-degree domestic

battery and remand the case to the circuit court to correct the illegal sentence for terroristic

threatening following Watson’s guilty plea.

In conjunction with his December 2020 guilty plea, Watson signed “conditions of

probation,” which included that he obey all federal, state, and local laws. Watson

acknowledged in his written guilty-plea statement that he was informed that first-degree

domestic battery was punishable by imprisonment of not less than five years but not more

than twenty years and that terroristic threatening was punishable by imprisonment not to

exceed six years. At the guilty-plea hearing, the circuit court informed Watson of the ranges

consistent with his acknowledgement. However, when the court pronounced the sentence,

it stated that the State recommended 120 months’ SIS for each offense, which was also

consistent with the State’s written plea and sentence recommendation. The December 22,

2020 sentencing order reflected that Watson entered a negotiated plea and was sentenced

to 120 months’ SIS for each offense.

On May 6, 2022, the State charged Watson with rape and second-degree sexual assault

and sought a habitual-offender enhancement. On May 10, the State filed a petition to revoke

Watson’s SIS for both terroristic threatening and first-degree domestic battery. The alleged

violations included that Watson failed to pay fines, costs, and fees as directed; failed to live

a law-abiding life; and on or before April 21, 2022, he repeatedly raped and sexually assaulted

a minor child, who was less than thirteen years of age, impregnating her. The underlying

2 charges and the revocation petition were tried simultaneously over several days in February

2023. The circuit court granted a mistrial on the underlying charges but proceeded with the

revocation.

Because Watson does not challenge the sufficiency of the evidence supporting the

revocation, only a brief summary of the testimony is necessary. Monica Bell testified that in

April 2022, she learned that her niece, the minor victim (MV), was pregnant. Bell alerted

the authorities, and an investigation ensued.

MV, who was fourteen years old at the time of trial, testified that she lived with her

mother and Watson through April 2022. MV said that Watson touched her in “sexual ways”

on numerous occasions at their home. She explained that she was ten years old when Watson

began to abuse her. MV said that Watson touched her breast, penetrated her digitally,

attempted to insert his penis inside her vagina, and put his penis in her mouth. MV stated

that when she was thirteen, Watson succeeded in penetrating her vagina with his penis. MV

learned she was pregnant in April 2022. DNA testing revealed a 99.99 percent probability

that Watson is the father of MV’s child.

At the conclusion of the revocation hearing, Watson argued that it was unclear

whether he had been placed on supervised probation or SIS. In addition, he contended that

he was never told “in writing what the consequences of his failure to abide by the terms of

his suspended sentence were.” When the court stated that it had a copy of the conditions

that were signed by Watson, counsel argued that there were blank spaces for the

“consequences”—specifically, the potential sentence and fines that could be imposed upon

3 revocation. The State responded that in the guilty-plea statement, Watson acknowledged

that he could be sentenced to five to twenty years for the domestic-battery charge and up to

six years for the terroristic-threatening charge. The circuit court ultimately found that

Watson signed the conditions, which included the condition that he live a law-abiding life,

because the conditions required him to obey all state and federal laws, local ordinances, and

court orders.

Regarding the terroristic-threatening offense, the circuit court noticed that Watson

was originally sentenced to 120 months’ SIS for the terroristic-threatening offense, which

exceeded the six-year maximum sentence allowed for a Class D felony. See Ark. Code Ann.

§ 5-4-401(a)(5) (Repl. 2013). The court stated that it could not consider “Terroristic

Threatening, it is a void sentence because it grossly exceeds the punishment level for what

[Watson] was charged and what he pled to.” However, the circuit court revoked Watson’s

SIS for the domestic-battery charge, noting that the burden of proof in a revocation

proceeding is a preponderance of the evidence and finding MV’s testimony “compelling.”

The circuit court believed MV and found that her testimony, alone, was enough to find that

Watson had violated the conditions of his SIS. Pursuant to the sentencing order, Watson

was sentenced to twenty years in prison for the domestic-battery offense, and the terroristic-

threatening offense was marked “acquitted.” This appeal followed.

4 For his first point on appeal, Watson argues that the terroristic-threatening sentence

is illegal and should be modified.1 He cites Kennedy v. State, 2021 Ark. App. 413, 635 S.W.3d

524, in support of his argument. Kennedy is a revocation case in which the circuit court

sentenced Kennedy to two years in prison followed by a four-year SIS on each revocation. Id.

at 9, 635 S.W.3d at 528–29. The circuit court, however, also included a provision that

Kennedy report to a supervising officer as a condition of his suspension, which is not allowed

under an SIS as opposed to probation. Id., 635 SW.3d at 528–29 (citing Ark. Code Ann. §

5-4-101(3) & (7); Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992)). On appeal, we

affirmed the revocation and the resulting sentence with the modification that Kennedy was

not required to report to a probation officer as a condition of his SIS. Id. at 9–10, 635 S.W.3d

at 529.

Kennedy is distinguishable because the illegal part of the sentence required only the

removal of an illegal condition. In Watson’s case, other than the sentencing range for a Class

D felony, the record does not show what sentence the circuit court would have imposed.

Therefore, we reject Watson’s request to modify the illegal sentence.

Watson also argues that the terroristic-threatening conviction should be declared void

and dismissed because the revocation sentencing order is marked “acquitted.” 2 However,

1 The State concedes that the sentence is illegal. 2 In the conclusion paragraph under this argument, Watson asks this court to modify his conviction to correct the original sentence he received for terroristic threatening “or dismiss the count as the circuit court may have been trying to do because an illegal sentence was imposed when [he] pled guilty.”

5 Watson acknowledges in his brief that it was unclear what the circuit court was trying to do,

and he offers no convincing argument or any legal authority to support dismissal of this

conviction; therefore, we do not reach the merits of this argument. Rawlins v. State, 2024

Ark. App. 83, at 6, 684 S.W.3d 602, 607 (“Where a party presents no convincing argument

nor cites any supporting legal authority, this court will not reach the merits of that point on

appeal.”).

The circuit court has the power to correct an illegal sentence at any time. See Ark.

Code Ann. § 16-90-111 (Repl. 2016); Harmon v. State, 2023 Ark. 120, at 2–3, 673 S.W.3d

797, 799. If an original sentence is illegal, even though it has been partially executed, the

court may correct it. State v. Webb, 373 Ark. 65, 71, 281 S.W.3d 273, 277 (2008). The remedy

for an illegal sentence is not dismissal of the proceedings. Limbocker v. State, 2016 Ark. 415,

at 3, 504 S.W.3d 592, 593 (stating that “the remedy for an illegal sentence is not dismissal

of the proceedings. . . . [W]e will not dismiss [appellant’s] revocation proceedings simply

because the sentencing order was facially invalid. The proper remedy is to amend, which the

court did here.”); see also Miller v. State, 2022 Ark. App. 352, at 5 (“The remedy for an illegal

sentence is not dismissal of all the proceedings, which would allow the appellant to benefit

from the failure to correct the sentence in the first place.”). Therefore, we remand to the

circuit court to correct the sentence Watson received following his guilty plea for terroristic

threatening.3

3 We note that Watson, in his reply brief, cites the dissent in Limbocker suggesting that because the revocation of his SIS was based on new criminal charges that accrued during a

6 For his second point on appeal, Watson argues that the revocation of his SIS for first-

degree domestic battery must be reversed or modified because (1) he did not receive the

written conditions of his SIS and did not know he was required to live a law-abiding life or

the consequences of failing to comply with that condition and (2) he was sentenced to

probation and SIS, which is not legal.

Pursuant to Arkansas Code Annotated section 5-4-303(a) (Supp. 2023), 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. Further, Arkansas Code Annotated section 5-4-303(e)(2) provides that the

court shall give the defendant a written statement explicitly setting forth the conditions

under which he or she is being released. All conditions for a suspended sentence or

probation, including any requirement of good behavior, must be in writing if the suspended

sentence or probation is to be revocable. Ross v. State, 268 Ark. 189, 191, 594 S.W.2d 852,

853 (1980). The reason for the statutory requirement to give a defendant the conditions in

writing is to avoid any misunderstanding, and this comports with due process. Ball v. State,

2021 Ark. App. 209, at 4, 624 S.W.3d 111, 113. Courts have no power to imply and

subsequently revoke conditions that were not expressly communicated in writing to a

period that his sentence was illegal, the circuit court lacked authority to revoke it. Here, the circuit court did not revoke Watson’s sentence for terroristic threatening but rather revoked his SIS for the domestic-battery offense, which is a legal sentence. Moreover, pursuant to Limbocker, the circuit court could have corrected the sentencing error and then revoked the sentence as amended, but it did not do so.

7 defendant as a condition of the suspended sentence or probation. Blankenship v. State, 2014

Ark. App. 104, at 4 (quoting Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998)).

Whether there is proof that a probationer received written conditions of probation is a

procedural matter and not one of sufficiency of the evidence because the purpose is to

prevent confusion on the probationer’s part. Costes v. State, 103 Ark. App. 171, 175, 287

S.W.3d 639, 643 (2008). When a defendant signs the conditions of his probation that

provide he must “obey all federal and state law,” that language is sufficient to put the

defendant on notice of what behavior is prohibited and will support a circuit court’s finding

that the defendant understood what was required. Matney v. State, 2022 Ark. App. 404, at

4−5, 654 S.W.3d 688, 690.

At the conclusion of the revocation hearing, Watson argued he was never told “in

writing what the consequences of his failure to abide by the terms of his suspended sentence

were.” He cited Trudo v. State, 2023 Ark. App. 78, 660 S.W.3d 631, and argued that the

revocation of probation cannot proceed if the defendant has not been informed in writing

of the conditions of probation. He reiterates these arguments on appeal. They have no merit.

Watson signed the conditions acknowledging that if he violated any of them, the

court could impose a sentence in the Arkansas Department of Correction. He also signed a

guilty-plea statement acknowledging the proper sentencing ranges for the offenses of first-

degree domestic battery and first-degree terroristic threatening. Finally, the conditions that

Watson signed specifically provide: “You must obey all federal and state laws, local

ordinances, and court orders.” This is sufficient evidence to support the circuit court’s

8 finding that Watson knew of the condition that he live a law-abiding life, consistent with

Matney, supra, and of the consequences of failing to comply with this condition.

Watson’s signature on the conditions distinguishes his case from Trudo, supra, in

which this court reversed the revocation of Trudo’s probation, holding that the circuit court

was without power to revoke probation on a condition that was not expressly given to her.

Id. at 6, 660 S.W.3d at 635. In Trudo, the condition to live a law-abiding life was not

contained in the order of probation, and there was no other proof that Trudo received the

condition in writing. Id. at 6–7, 660 S.W.3d at 635.

Watson also argues that the domestic-battery revocation must be reversed or modified

because it was not clear whether he was sentenced to probation or SIS. While he was

supposed to be sentenced to SIS, he points to discrepancies in the record that indicate he

was sentenced to probation. For example, the conditions were titled “condition of

probation”; many of the conditions required him to report to probation, although there was

a handwritten notation of “no” next to the reporting box, which was not checked; and the

last page of the guilty-plea sentencing order contained a checked box that indicates Watson

was “assigned” to probation.

SIS and probation are not the same, and an SIS reporting requirement is prohibited.

See Ark. Code Ann. § 5-4-303(c)–(d) (Supp. 2023); see also Kennedy, supra. Despite the

discrepancies, Watson’s SIS was revoked because he violated the condition that required

him to abide by all laws, as discussed above, not for failing to report. However, because we

are remanding this case for the circuit court to correct the illegal sentence for terroristic

9 threatening found in the guilty-plea sentencing order, we also direct the circuit court to

correct any scrivener’s errors in the revocation sentencing order, including the reference that

Watson was assigned to probation.

In conclusion, we affirm the revocation of Watson’s SIS for first-degree domestic

battery. We remand for the circuit court to correct the sentencing order following Watson’s

guilty plea with regard to the terroristic-threatening offense and to correct any scrivener’s

errors in the revocation sentencing order.

Affirmed; remanded to correct sentencing orders.

HIXSON and BROWN, JJ., agree.

Sharon Kiel, for appellant.

Tim Griffin, Att’y Gen., by: Michael Zangari, Ass’t Att’y Gen., for appellee.