Cite as 2014 Ark. App. 283
ARKANSAS COURT OF APPEALS DIVISION IV No. CR-13-326
Opinion Delivered May 7, 2014
PENNY J. WHITSON APPEAL FROM THE BAXTER APPELLANT COUNTY CIRCUIT COURT [NO. CR 2009-130] V. HONORABLE GORDON WEBB, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED
ROBIN F. WYNNE, Judge
Penny Whitson appeals from the revocation of her probation.1 Upon revocation, the
trial court sentenced Whitson to a total of 122 months’ imprisonment. She argues on appeal
that (1) the trial court erred by sentencing her to probation and drug court in November
2009 because she was ineligible for both; (2) because the November 2009 sentence was
illegal, the revocation was also illegal; and (3) “the revised sentence in November of 2012
was calculated incorrectly.” We affirm.
On November 19, 2009, Whitson pled guilty to possession of a controlled substance
(psilocybin mushrooms) and possession of drug paraphernalia, both Class C felonies, and was
sentenced pursuant to a plea agreement to a total of 144 months’ probation and assigned to
1 This case returns to us following supplementation of the record and rebriefing. Whitson v. State, 2013 Ark. App. 730. Cite as 2014 Ark. App. 283
drug court. On November 9, 2012, the State filed a petition to revoke, alleging that
Whitson had violated the terms and conditions of her probation by (1) committing offenses
punishable by imprisonment (possession of methamphetamine and drug paraphernalia in
Baxter County CR-2011-243; breaking or entering and theft of property in Baxter County
CR-2011-124) and (2) failing to participate in the Fourteenth Judicial District Drug Court.
Whitson answered the petition, arguing that she was not in violation of her probation
because she had not committed the alleged offenses and because her sentence to drug court
was an illegal sentence.
The revocation hearing was held on November 16, 2012. It began with arguments
regarding the legality of Whitson being sentenced to drug court and testimony from Eva
Frame, who was in charge of the drug-court program. Frame’s testimony revealed that
Whitson was in the custody of the Arkansas Department of Correction when she was
sentenced to probation in November 2009; she then went to the Missouri Department of
Corrections for a parole violation. She was released from custody in Missouri on December
2, 2010. Whitson returned to Baxter County. Testimony was presented from the victim of
a May 30, 2011 breaking or entering and theft from a storage unit, as well as investigating
officers from the Baxter County Sheriff’s Office, that Whitson was the perpetrator. A
sheriff’s deputy testified that he arrested Whitson on October 30, 2011, for possession of
methamphetamine and drug paraphernalia. Whitson also testified, admitting that she had lost
count of the number of previous felony convictions she had. The trial court declined to
revoke Whitson’s probation based on her failure to participate in drug court, but the court
revoked her probation based on its finding that she had committed the new criminal offenses
2 Cite as 2014 Ark. App. 283
testified to at the hearing. Whitson received consecutive sentences of seventy-two months’
imprisonment for possession of a controlled substance and fifty months’ imprisonment for
possession of drug paraphernalia, for a total sentence of 122 months’ imprisonment.
First, Whitson argues that the circuit court erred by sentencing her to probation and
drug court in 2009 because (1) as someone with pending criminal charges, she was ineligible
for the Fourteenth Judicial District’s drug-court program; and (2) she was ineligible for
probation under Ark. Code Ann. § 5-4-301 because she had previously been convicted of
two or more felonies. Whitson’s argument that she was not eligible for drug court is moot
because the circuit court expressly stated that her failure to enter drug court was not a basis
for the revocation.
Appellant’s argument that she received an illegal sentence because she was not eligible
for probation also fails. It is well settled that an appellant may challenge an illegal sentence
for the first time on appeal, even if she did not raise the argument below. Richie v. State,
2009 Ark. 602, 357 S.W.3d 909. Specifically, this court views an issue of a void or illegal
sentence as being an issue of subject-matter jurisdiction, which we may review whether or
not an objection was made in the trial court. Id. A sentence is void or illegal when the trial
court lacks authority to impose it. Id. In Arkansas, sentencing is entirely a matter of statute.
Id. In stating this general rule, our supreme 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. Id. Specifically, where the law does not authorize the particular sentence
pronounced by the trial court, the sentence is unauthorized and illegal. Id.
3 Cite as 2014 Ark. App. 283
Arkansas Code Annotated section 5-4-301(a)(2) provides: “If it is determined pursuant
to § 5-4-502 [recidivist sentencing, procedures; juries] that a defendant has previously been
convicted of two (2) or more felonies, the court shall not suspend imposition of sentence or
place the defendant on probation.” Here, Whitson argues that she had a “string of previous
felony charges from breaking and entering, forgery, and possession”; that she testified at the
revocation hearing that she could not remember how many times she had been previously
convicted of felonies; and that “the State never should have placed [her] on probation.” As
the State points out, however, Ark. Code Ann. § 5-4-301(a)(2) requires that the previous
felony convictions be “determined” in accordance with section 5-4-502. Apparently, no
evidence was presented to the trial court at the time that Whitson was sentenced to
probation that she had been previously convicted of two or more felonies. In addition to the
requirement that evidence be presented proving beyond a reasonable doubt that the
defendant has, in fact, previously been convicted of the felonies alleged, a prior conviction
cannot be used to enhance punishment unless the defendant was represented by counsel or
validly waived counsel, Byrum v. State, 318 Ark. 87, 94, 884 S.W.2d 248, 252–53 (1994); in
the event the record of the prior conviction does not show the defendant was represented
by counsel, a presumption arises that the defendant was denied assistance of counsel and the
conviction cannot be used to enhance punishment under our habitual-offender provisions.
Id.
The cases Whitson cites are not on point. Based on the above, the circuit court had
the authority to impose a sentence of probation because no evidence was presented and no
determination was made that Whitson was a habitual offender who had been convicted of
4 Cite as 2014 Ark. App. 283
two or more felonies. Because the sentence of probation was not an illegal sentence,2 it
follows that the revocation was also not illegal.
Finally, Whitson argues that even if this court affirms her original sentence and
subsequent revocation, the trial court erred by sentencing her “to more time than her
original sentence.” She contends that the thirty-six months that elapsed between her being
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Cite as 2014 Ark. App. 283
ARKANSAS COURT OF APPEALS DIVISION IV No. CR-13-326
Opinion Delivered May 7, 2014
PENNY J. WHITSON APPEAL FROM THE BAXTER APPELLANT COUNTY CIRCUIT COURT [NO. CR 2009-130] V. HONORABLE GORDON WEBB, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED
ROBIN F. WYNNE, Judge
Penny Whitson appeals from the revocation of her probation.1 Upon revocation, the
trial court sentenced Whitson to a total of 122 months’ imprisonment. She argues on appeal
that (1) the trial court erred by sentencing her to probation and drug court in November
2009 because she was ineligible for both; (2) because the November 2009 sentence was
illegal, the revocation was also illegal; and (3) “the revised sentence in November of 2012
was calculated incorrectly.” We affirm.
On November 19, 2009, Whitson pled guilty to possession of a controlled substance
(psilocybin mushrooms) and possession of drug paraphernalia, both Class C felonies, and was
sentenced pursuant to a plea agreement to a total of 144 months’ probation and assigned to
1 This case returns to us following supplementation of the record and rebriefing. Whitson v. State, 2013 Ark. App. 730. Cite as 2014 Ark. App. 283
drug court. On November 9, 2012, the State filed a petition to revoke, alleging that
Whitson had violated the terms and conditions of her probation by (1) committing offenses
punishable by imprisonment (possession of methamphetamine and drug paraphernalia in
Baxter County CR-2011-243; breaking or entering and theft of property in Baxter County
CR-2011-124) and (2) failing to participate in the Fourteenth Judicial District Drug Court.
Whitson answered the petition, arguing that she was not in violation of her probation
because she had not committed the alleged offenses and because her sentence to drug court
was an illegal sentence.
The revocation hearing was held on November 16, 2012. It began with arguments
regarding the legality of Whitson being sentenced to drug court and testimony from Eva
Frame, who was in charge of the drug-court program. Frame’s testimony revealed that
Whitson was in the custody of the Arkansas Department of Correction when she was
sentenced to probation in November 2009; she then went to the Missouri Department of
Corrections for a parole violation. She was released from custody in Missouri on December
2, 2010. Whitson returned to Baxter County. Testimony was presented from the victim of
a May 30, 2011 breaking or entering and theft from a storage unit, as well as investigating
officers from the Baxter County Sheriff’s Office, that Whitson was the perpetrator. A
sheriff’s deputy testified that he arrested Whitson on October 30, 2011, for possession of
methamphetamine and drug paraphernalia. Whitson also testified, admitting that she had lost
count of the number of previous felony convictions she had. The trial court declined to
revoke Whitson’s probation based on her failure to participate in drug court, but the court
revoked her probation based on its finding that she had committed the new criminal offenses
2 Cite as 2014 Ark. App. 283
testified to at the hearing. Whitson received consecutive sentences of seventy-two months’
imprisonment for possession of a controlled substance and fifty months’ imprisonment for
possession of drug paraphernalia, for a total sentence of 122 months’ imprisonment.
First, Whitson argues that the circuit court erred by sentencing her to probation and
drug court in 2009 because (1) as someone with pending criminal charges, she was ineligible
for the Fourteenth Judicial District’s drug-court program; and (2) she was ineligible for
probation under Ark. Code Ann. § 5-4-301 because she had previously been convicted of
two or more felonies. Whitson’s argument that she was not eligible for drug court is moot
because the circuit court expressly stated that her failure to enter drug court was not a basis
for the revocation.
Appellant’s argument that she received an illegal sentence because she was not eligible
for probation also fails. It is well settled that an appellant may challenge an illegal sentence
for the first time on appeal, even if she did not raise the argument below. Richie v. State,
2009 Ark. 602, 357 S.W.3d 909. Specifically, this court views an issue of a void or illegal
sentence as being an issue of subject-matter jurisdiction, which we may review whether or
not an objection was made in the trial court. Id. A sentence is void or illegal when the trial
court lacks authority to impose it. Id. In Arkansas, sentencing is entirely a matter of statute.
Id. In stating this general rule, our supreme 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. Id. Specifically, where the law does not authorize the particular sentence
pronounced by the trial court, the sentence is unauthorized and illegal. Id.
3 Cite as 2014 Ark. App. 283
Arkansas Code Annotated section 5-4-301(a)(2) provides: “If it is determined pursuant
to § 5-4-502 [recidivist sentencing, procedures; juries] that a defendant has previously been
convicted of two (2) or more felonies, the court shall not suspend imposition of sentence or
place the defendant on probation.” Here, Whitson argues that she had a “string of previous
felony charges from breaking and entering, forgery, and possession”; that she testified at the
revocation hearing that she could not remember how many times she had been previously
convicted of felonies; and that “the State never should have placed [her] on probation.” As
the State points out, however, Ark. Code Ann. § 5-4-301(a)(2) requires that the previous
felony convictions be “determined” in accordance with section 5-4-502. Apparently, no
evidence was presented to the trial court at the time that Whitson was sentenced to
probation that she had been previously convicted of two or more felonies. In addition to the
requirement that evidence be presented proving beyond a reasonable doubt that the
defendant has, in fact, previously been convicted of the felonies alleged, a prior conviction
cannot be used to enhance punishment unless the defendant was represented by counsel or
validly waived counsel, Byrum v. State, 318 Ark. 87, 94, 884 S.W.2d 248, 252–53 (1994); in
the event the record of the prior conviction does not show the defendant was represented
by counsel, a presumption arises that the defendant was denied assistance of counsel and the
conviction cannot be used to enhance punishment under our habitual-offender provisions.
Id.
The cases Whitson cites are not on point. Based on the above, the circuit court had
the authority to impose a sentence of probation because no evidence was presented and no
determination was made that Whitson was a habitual offender who had been convicted of
4 Cite as 2014 Ark. App. 283
two or more felonies. Because the sentence of probation was not an illegal sentence,2 it
follows that the revocation was also not illegal.
Finally, Whitson argues that even if this court affirms her original sentence and
subsequent revocation, the trial court erred by sentencing her “to more time than her
original sentence.” She contends that the thirty-six months that elapsed between her being
sentenced to probation in November 2009 and the revocation in November 2012 should be
taken off her sentence as time served, leaving her with 108 months of time remaining on her
sentence. She cites Arkansas Code Annotated section 5-4-307(b)(2), which provides that the
period of a suspension or probation runs concurrently with any federal or state term of
imprisonment or parole to which a defendant is or becomes subject to during the period of
the suspension or probation, and points specifically to the fact that she was incarcerated in
Missouri for some unknown amount of time after her sentence of probation was imposed.
Whitson’s argument is without merit.
With an exception not applicable here, a period of suspension or probation
commences to run on the day it is imposed. Ark. Code Ann. § 5-4-307(a). So Whitson is
correct in that her period of probation began to run when she was sentenced in November
2009. However, if a court revokes a suspension or probation, the court may enter a
judgment of conviction and may impose any sentence on the defendant that might have been
2 As the State points out, running Whitson’s two seventy-two-month terms of probation consecutively is not authorized under Ark. Code Ann. § 5-4-307(b)(1) (providing that multiple periods of suspension or probation run concurrently). However, the revocation occurred before the expiration of seventy-two months, and the trial court had the authority to sentence her at that time to any sentence it might have originally imposed, including consecutive terms of imprisonment.
5 Cite as 2014 Ark. App. 283
imposed originally for the offense of which he or she was found guilty. Ark. Code Ann. §
5-4-309(g)(1)(A) (repealed by Act 570 of 2011; now codified at Ark. Code Ann. § 16-93-
308(g)(1)(A)).3
Here, Whitson pled guilty to two Class C felonies and thus was subject to a maximum
sentence of ten years on both counts. See Ark. Code Ann. § 5-4-401(a)(4). Whitson’s
sentences of seventy-two months’ and fifty months’ imprisonment upon revocation were
within the sentence allowed by statute.
Affirmed.
WHITEAKER and VAUGHT, JJ., agree.
Law Office of Chris Lacy, by: Chris Lacy, for appellant.
Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.
3 Whitson’s reliance on Chadwell v. State, 80 Ark. App. 133, 91 S.W.3d 530 (2002), is misplaced. Chadwell was sentenced to twenty years’ imprisonment with ten years suspended, which was a suspended execution of sentence. This court held that the suspended portion of Chadwell’s sentence commenced running when he was released from confinement, pursuant to Ark. Code Ann. § 5-4-307(c), and that the trial court did not have the authority to require Chadwell to serve more than the remainder of his original sentence. Thus, Chadwell is distinguishable from the case at hand, and as the State points out, relies on outdated law. “Prior to Act 1569 [of 1999], our caselaw stood for the proposition that a trial court lost jurisdiction to modify or amend an original sentence once that sentence was put into execution.” Moseley v. State, 349 Ark. 589, 594, 80 S.W.3d 325, 327–28 (2002).