Cite as
2015 Ark. App. 449
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-14-1022
LEOPOLDO D. APODACA Opinion Delivered September 9, 2015
APPELLANT
APPEAL FROM THE UNION
V. COUNTY CIRCUIT COURT
[NO. CR-11-634]
STATE OF ARKANSAS HONORABLE HAMILTON H.
APPELLEE SINGLETON, JUDGE
REMANDED TO SETTLE THE
RECORD; REBRIEFING ORDERED
RAYMOND R. ABRAMSON, Judge
Leopoldo D. Apodaca appeals from the Union County Circuit Court’s revocation of
his suspended sentence. On appeal, Apodaca argues that the circuit court erred by admitting
out-of-court statements that violated the Confrontation Clause. We remand the case to the
circuit court to settle the record.
On March 13, 2012, Apodaca pled guilty to aggravated cruelty to a dog, and the
Union County Circuit Court sentenced him to twenty-four months’ imprisonment in the
Arkansas Department of Correction (“ADC”) followed by a forty-eight-month suspended
sentence. On June 25, 2014, the State filed a petition to revoke Apodaca’s suspended
sentence, alleging that he committed third-degree domestic battery against Amber Wallace
on June 15, 2014. On July 24, 2014, the circuit court held a revocation hearing.
Cite as 2015 Ark. App. 449
At the commencement of the hearing, the State requested a continuance because
Wallace was not present to testify. The State noted that Detective Scott Harwell with the El
Dorado Police Department had attempted to locate Wallace prior to the hearing, but he was
unsuccessful. The circuit court denied the State’s request and proceeded with the revocation
hearing.
Detective Harwell then testified about his attempts to locate Wallace. Specifically,
Harwell testified that he had called Wallace’s mother on several occasions, but Wallace’s
mother informed him that she was not speaking to her daughter and had not seen her since
the June 15 incident. Harwell stated that he had visited two different residences where he
heard Wallace might be located, but he did not find her at those addresses. He also stated that
he had identified telephone numbers for Wallace, but the numbers had been disconnected.
Officer Robert Seely with the El Dorado Police Department testified that on June 15,
2014, he performed a traffic stop on Wallace’s brother for speeding. During the stop,
Wallace’s brother informed Seely that he was speeding to meet his sister who was injured.
Seely then followed her brother to Wallace’s location where he observed Wallace bleeding
profusely from her mouth and holding both sides of her face. Seely further testified that
Wallace had difficulty talking because of a swollen jaw. Seely asked Wallace what happened,
and Wallace informed him that she had gotten into a physical altercation with her boyfriend,
Apodaca.
During Seely’s testimony, Apodaca’s defense counsel objected, asserting that the
testimony violated the Confrontation Clause because Wallace was not present at the hearing
2
Cite as 2015 Ark. App. 449
and Apodaca could not cross-examine her. The circuit court overruled Apodaca’s objection
and noted that the State had “made a good-faith effort” to locate Wallace.
Apodaca then testified on his own behalf. He stated that he did not have a physical
altercation with Wallace on June 15, 2014. He noted that he had seen Wallace and that they
had gotten into a verbal disagreement, but Wallace’s injuries “had nothing to do with [him].”
Following his testimony, the circuit court revoked Apodaca’s suspended sentenced.
The court noted that it was
satisfied that the confrontation issue had been addressed. A good-faith effort ha[d] been
made by the victim in this case . . . I’m satisfied with the information given to Officer
Seely that the injuries suffered by . . . that he observed and suffered by the victim
Amber Wallace were delivered by this defendant on June 15 of this year.
The court then sentenced Apodaca to four years’ imprisonment.
Thereafter, on August 29, 2014, the circuit court entered a sentencing order indicating
that Apodaca was found guilty by the court and was sentenced by the court, but the order
additionally indicates that Apodaca voluntarily, intelligently, and knowingly negotiated a
guilty plea. The Union County prosecutor also filed a short report of circumstances on August
29, 2014, that states that “[o]n July 24, the Defendant appeared before Hamilton H. Singleton
and pled guilty.” Thus, it is unclear to this court whether the circuit court found that Apodaca
violated the terms and conditions of his suspended sentence or whether Apodaca pled guilty.
Accordingly, we remand this case for the record to be settled and for the correction of the
sentencing order within thirty days of the date of this order, and we order rebriefing. Apodaca
has fifteen days after the record has been settled to file a substituted abstract, addendum, and
brief. The State will likewise be given the opportunity to file a responsive brief. We
3
Cite as 2015 Ark. App. 449
encourage the parties to carefully examine the record and review our rules to ensure that no
additional deficiencies are present.
Remanded to settle the record; rebriefing ordered.
GRUBER and HOOFMAN, JJ., agree.
N. Mark Klappenbach, for appellant.
Leslie Rutledge, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
4
