Sandoval v. State

2013 Ark. App. 586

• Court: Court of Appeals of Arkansas
• Decided: October 23, 2013
• Docket: CR-13-430
• Status: Published

Opinion

Cite as 2013 Ark. App. 586

ARKANSAS COURT OF APPEALS DIVISION IV CR-13-430 No.

Opinion Delivered OCTOBER 23, 2013 ELOY CHRISTOPHER SANDOVAL APPELLANT APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, V. WESTERN DISTRICT [NO. CR-2006-275] STATE OF ARKANSAS APPELLEE HONORABLE VICTOR L. HILL, JUDGE

AFFIRMED

BILL H. WALMSLEY, Judge

Appellant Eloy Christopher Sandoval appeals from an order of the Craighead County

Circuit Court revoking his probation and suspended imposition of sentence (SIS). On appeal,

he argues that the trial court imposed illegal sentences. We affirm.

In the Craighead County Circuit Court in case CR 2006-275, appellant pled guilty

to stalking, a Class B felony, and terroristic threatening, a Class D felony. On the stalking

charge, he was sentenced to 120 days in the county jail and ten years’ probation. On the

terroristic-threatening charge, he was sentenced to another 60 days in the county jail and five

years’ SIS. The judgment and commitment order was entered on October 2, 2006.

On June 12, 2012, the State filed a second amended petition to revoke alleging that

appellant had violated numerous conditions of his probation and SIS. A revocation hearing

was held on January 18, 2013, and at the conclusion of the hearing, the court found that Cite as 2013 Ark. App. 586

appellant had violated several conditions. On the stalking offense, appellant was sentenced

to five years’ imprisonment with an additional six years’ SIS. On the terroristic-threatening

offense, he was sentenced to five years’ SIS. The sentencing order was filed on January 18,

2013, and appellant filed a timely notice of appeal.

It is well settled that an appellant may challenge an illegal sentence for the first time on

appeal, even if he did not raise the argument below. Parmley v. State, 2011 Ark. App. 685.

A sentence is illegal if the trial court is without the authority to impose it, even if on its face

it is within the statutory range. Wakeley v. State, 2013 Ark. App. 231. Because sentencing

is entirely a matter of statute, the trial court only has the authority to impose a particular

sentence when it complies with the applicable statute. Id.

Appellant argues that his stalking sentence is illegal because the maximum sentence for

a Class B felony is twenty years, and he was sentenced to a total of twenty-one years on that

offense. He adds his original sentence of ten years’ probation to his sentence upon revocation

of five years’ imprisonment followed by six years’ SIS.

Appellant is correct that the sentence for a Class B felony shall be not less than five

years nor more than twenty years. Ark. Code Ann. § 5-4-401(a)(3) (Repl. 2006). However,

his sentence does not exceed twenty years. “If the court revokes a suspension or probation,

it 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.”

2 Cite as 2013 Ark. App. 586

Ark. Code Ann. § 5-4-309(f)(1)(A) (Supp. 2005).1 However, any sentence of imprisonment,

when combined with any previous imprisonment imposed for the same offense, shall not

exceed the limits of § 5-4-401, or if applicable, § 5-4-501. Ark. Code Ann. §

5-4-309(f)(1)(B). Appellant erroneously adds his original ten-year probation sentence to his

sentence upon revocation. This ten-year probation sentence was not a term of “imprisonment

imposed” upon appellant. Thus, appellant’s eleven-year sentence upon revocation when

combined with his previous 120-day incarceration sentence does not exceed the maximum

of twenty years.

Regarding the terroristic-threatening offense, appellant argues that he received an

illegal ten-year sentence when the original five-year SIS is added to the five-year SIS ordered

upon revocation. For a Class D felony, the sentence shall not exceed six years. Ark. Code

Ann. § 5-4-401(a)(5). However, appellant’s original five-year SIS was not a sentence of

imprisonment imposed upon him. Appellant’s sentence upon revocation when combined

with his original sentence of 60 days’ incarceration is within the legal range of punishment.

Appellant also argues that he should not have been sentenced on the terroristic-

threatening offense because the time for revocation on that conviction had run prior to the

filing of the petition to revoke. He notes that the second amended petition to revoke was

filed on June 12, 2012, more than five years after his 2006 sentence of five years’ SIS.

Although the petition was filed more than five years after appellant was sentenced, Arkansas

1 This statute was repealed by Acts of 2011, Act 570, §§ 10 to 13, effective July 27, 2011.

3 Cite as 2013 Ark. App. 586

Code Annotated section 5-4-309(e)(2) provided that a court may revoke a suspension or

probation subsequent to the expiration of the period of suspension or probation if before

expiration of the period a warrant is issued for the defendant’s arrest for violation of

suspension or probation. As the State points out, the record contains a bench warrant for

appellant’s arrest for violation of probation in case CR 2006-275. The warrant was issued on

May 5, 2011, which was within five years of appellant’s sentence on October 2, 2006. Thus,

the trial court had jurisdiction to revoke appellant’s SIS for terroristic threatening.

Affirmed.

HIXSON and BROWN, JJ., agree.

Terry Goodwin Jones, for appellant.

Dustin McDaniel, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.