Slater v. State

                                  Cite as 

                 ARKANSAS COURT OF APPEALS
                                         DIVISION III
                                        No. CR-13-836


                                                   OPINION DELIVERED FEBRUARY 18, 2015
DONNIE SLATER
                                APPELLANT          APPEAL FROM THE ARKANSAS
                                                   COUNTY CIRCUIT COURT
                                                   [NO. CR-2012-75]
V.
                                                   HONORABLE DAVID G. HENRY,
                                                   JUDGE
STATE OF ARKANSAS
                                   APPELLEE        AFFIRMED



                          ROBERT J. GLADWIN, Chief Judge

       Counsel for appellant Donnie Slater originally filed a no-merit brief in this action, and

appellant filed pro se points for reversal. Pursuant to this court’s opinion, see Slater v. State,

, appellant’s counsel filed a substituted brief arguing that the sentencing

in his convictions of delivery of a controlled substance and unlawful use of a communication

device, for which he was sentenced as a habitual offender,1 was illegal. We affirm.2

       Appellant was convicted of delivery of a controlled substance with the use of a

communication device; and an enhancement for conducting the transaction within 1000 feet




       1
        His sentence for the delivery conviction was enhanced by another ten years because
the offense was committed within 1000 yards of a day-care facility.
       2
         Appellant filed a motion on February 2, 2015, requesting he be allowed to file a new
substituted brief to argue an additional issue regarding the legality of a sentence when an
enhancement is utilized on someone sentenced as a habitual offender. Because appellant
failed to preserve this issue for our review, see infra, we deny appellant’s motion.
                                 Cite as 

of a daycare.3 He was sentenced pursuant to a sentencing order filed on April 3, 2013, to

twenty years in the Arkansas Department of Correction (ADC) for the delivery conviction,

ten years on the use of communication device charge, and an additional ten years on the

enhancement, for a total of forty years in the ADC. Appellant filed a timely notice of appeal

on April 5, 2013.

       The State has the burden of proving a defendant’s prior convictions. Ray v. State,

, 

. “Unless the records of prior convictions show that the

defendant was represented by counsel, there is a presumption that the defendant was denied

assistance of counsel, and the convictions cannot be used to enhance punishment under our

habitual offender provisions.” Bradley v. State, 

, 

(1995); Stewart v. State, 

, 

 (1989).

       In the present case, appellant was convicted of delivery of less than two grams of

cocaine and sentenced as a habitual offender to twenty years in the ADC.4 Delivery of less

than two grams of cocaine is a Class C felony. 

(b)(1) (Supp.

2013). Normally, a Class C felony has a penalty range of three to ten years in the ADC.

(a)(4) (Repl. 2013). The State, however, charged appellant as a

habitual offender who had been convicted of at least four prior felonies. Moreover, the

circuit court instructed the jury that appellant had been convicted of more than four felonies.



       3
        He was originally charged with two counts of delivery of a controlled substance and
use of a communication device, but the jury acquitted him of one count of each charge.
       4
         Mr. Slater’s sentence on the use of a communication device was not alleged to be
illegal and is not a part of this argument.

                                              2
                                   Cite as 

For a habitual offender, the sentencing range on a Class C felony is increased to three to

thirty years. 

(b)(1)(A) (Repl. 2013). Appellant claims that the

State’s proof was insufficient and the twenty-year sentence was illegal.

       Following the guilty verdict, the State presented evidence of appellant’s prior felonies.

Without objection from defense counsel, the State read to the jury the case number of each

conviction, the court in which the conviction was had, and the sentence appellant received

in those prior cases. The State did not introduce any evidence of the convictions, judgments,

docket sheets, or pen-packs from the ADC. The State did not provide evidence that

appellant had been represented by counsel in any of those prior convictions. After the

recitation of convictions, the circuit court instructed the jury, and appellant was sentenced.

Because the record in this case is completely silent on the question of whether appellant was

represented by counsel, appellant argues that the State failed to meet its burden to provide

adequate evidence of his prior convictions and the resulting sentence of twenty years should

be reversed and the case remanded for a new sentencing hearing.

       Appellant contends that the fact that he did not object to the State’s failure to provide

sufficient proof of his prior convictions does not bar this court from addressing the issue

because it is well-settled that an appellant may raise the issue of an illegal sentence for the first

time on appeal. Cross v. State, 

, 

. We disagree. Appellant

cannot challenge the prior convictions used for enhancement purposes for the first time on

appeal. Davidson v. State, 

, 

 (2004); Rice v. State, 

. His attempt to circumvent that rule by alleging that his sentence is illegal and that

he can raise that issue for the first time on appeal is without merit.

                                                 3
                                  Cite as 

       In Jones v. State, 

, 

 (2003), the appellant argued that

his sentence, which was enhanced because he had two prior felony convictions, was illegal

because the two convictions arose from the same incident and that, pursuant to Arkansas

Code Annotated section 5-4-501(e)(1)(Repl. 1997), they should have been considered a

single conviction for habitual-offender sentencing purposes. Jones, at 198, 

.

This court held that an appellant sentenced as an habitual offender could not successfully

challenge his sentence as illegal on appeal but that, instead, the issue of whether an habitual

offender sentence was properly imposed must first be raised at the circuit court. 

 The

Jones court cited earlier authority holding that, where a defendant challenges whether a prior

conviction was properly used to enhance his sentence because the proof of the conviction

does not show that he was represented by counsel, the issue must first be raised in the trial

court. 

 (citing Byrum v. State, 

, 

 (1994); and McDonald v. State,

, 

 (1984)).

       We hold that appellant’s sentence is legal because it was within the permissible

statutory range for a defendant convicted of a Class C felony who had four or more prior

felony convictions. 

(a)(2)(D); 

 Appellant’s argument

that the State did not properly prove his prior convictions, specifically, that the State did not

prove that he was represented by counsel in each of those convictions, is not preserved for

appellate review because it was not previously raised. 

 Accordingly, we affirm.

       Affirmed.
       KINARD and BROWN, JJ., agree.
       Law Office of Jeffrey Weber, PLLC, by: Jeffrey Weber, for appellant.
       Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.


                                               4