Summerford v. State

2014 Ark. App. 209

• Court: Court of Appeals of Arkansas
• Decided: April 2, 2014
• Docket: CR-13-648
• Status: Published

Opinion

Cite as 2014 Ark. App. 209

ARKANSAS COURT OF APPEALS DIVISION IV No. CR-13-648

Opinion Delivered April 2, 2014 DONNIE SUMMERFORD, JR. APPEAL FROM THE CLEVELAND APPELLANT COUNTY CIRCUIT COURT [NO. CR-12-24] V. HONORABLE LARRY CHANDLER, STATE OF ARKANSAS JUDGE APPELLEE AFFIRMED

PHILLIP T. WHITEAKER, Judge

Donnie Summerford, Jr., appeals his Cleveland County conviction for possession of

a firearm by certain persons,1 claiming that his previous suspended imposition of sentence did

not constitute a conviction of a felony for purposes of the statute. We affirm.

In 1991, Summerford received a three-year suspended imposition of sentence after

pleading guilty to a felony theft-of-property charge. Because Summerford completed his

suspended sentence, no judgment of conviction was entered of record. In 2012, law

enforcement responded to Summerford’s address in relation to a domestic disturbance.

Summerford was subsequently arrested after officers discovered multiple firearms during a

search of his residence. Summerford, in a statement to police, also admitted to owning and

1 We note that the information and the sentencing order in this case reference Arkansas Code Annotated section 5-73-120 (carrying a weapon) rather than section 5-73-103 (possession of a firearm by certain persons). We conclude that this is a simple clerical misprision. The information, while referencing 5-73-120, recites the language of section 5- 73-103; the jury was instructed on the elements of section 5-73-103; and the sentencing order indicates that the conviction is for possession of a firearm by certain persons by its use of the acronym POFCP under the section designating the name of the offense. Cite as 2014 Ark. App. 209 possessing several firearms.

At trial, the State submitted only the terms and conditions of his suspended sentence

as proof of his previous felony conviction. The document entitled “Conditions of

Probation/Suspension” simply recited that he had pled guilty to theft of property and detailed

the conditions of his three-year suspended sentence. It further stated, “If you are revoked,

judgment will be entered against you, and the Court will sentence you then on your original

plea made today within the punishment range set by law.” Counsel for Summerford sought

a directed verdict, arguing that this document was not a judgment of conviction and, thus,

was not the proper proof of a prior felony. The trial court denied his motion. Summerford

was found guilty of being a felon in possession of a firearm and was ordered to pay a $7500

fine.

Summerford argues that the trial court erred in ruling that his previous suspended

sentence in Drew County constituted a conviction for purposes of section 5-73-103. He

argues Arkansas Code Annotated section 5-4-301 requires that a judgment of conviction be

entered only when the defendant is ordered to pay a fine or serve a term of imprisonment in

addition to probation or suspension of sentence. Because he was not ordered to pay a fine or

serve a term of imprisonment, he argues that no judgment of conviction was entered against

him. Because no judgment of conviction exists, he argues that the State failed to meet its

burden of proof of a prior felony conviction—a necessary element of the alleged crime.

Additionally, he asserts that he fully complied with the terms of his suspended sentence; thus,

under Arkansas Code Annotated section 5-4-311, the court was obligated to discharge and

dismiss any proceedings against him.

Summerford’s arguments are unavailing, and we find an analysis under sections

5-4-301 and -311 unnecessary. Arkansas Code Annotated section 5-73-103(a)(1) (Supp.

2 Cite as 2014 Ark. App. 209 2011) provides that no person who has been convicted of a felony shall possess or own any

firearm. The statute goes on to provide that “[a] determination by a jury or a court that a

person committed a felony constitutes a conviction for purposes of subsection (a) of this

section even though the court suspended imposition of sentence or placed the defendant on

probation.” Ark. Code Ann. § 5-73-103(b)(1). Thus, the statute itself specifically defines the

term “conviction” for purposes of determining whether a violation has been committed.

Summerford pled guilty to felony theft of property in 1991. The court accepted his

guilty plea and sentenced him to three years’ suspended imposition of sentence. Under the

plain language of Ark. Code Ann. § 5-73-103, the court’s determination that he was guilty

of a felony resulted in a conviction for purposes of the statute despite the imposition of a

suspended sentence and without entry of a judgment of conviction. Because the State

sufficiently proved the elements of the offense, we affirm.

GLADWIN, C.J., and WALMSLEY, J., agree.

N. Mark Klappenbach, for appellant.

Dustin McDaniel, Att’y Gen., by: Rachel H. Kemp, Ass’t Att’y Gen., for appellee.