ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
 

DIVISION I

RANDY PHILLIPS

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-1240

JANUARY 14, 2004

APPEAL FROM GARLAND COUNTY CIRCUIT COURT

[NO. CR2001-538-I]

HONORABLE JOHN HOMER WRIGHT, CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

Appellant Randy Phillips pled guilty to aggravated robbery and commercial burglary, for which he was sentenced by the trial court to respective terms of imprisonment of fifteen years and ten years. The trial court ordered that the sentences be served consecutively to each other and to a sentence previously imposed for revocation of his probation. This case only involves Phillips's appeal from his conviction for aggravated robbery, but his appeal from the commercial burglary conviction is also pending before the court in CACR02-1238. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, Phillips's counsel previously filed a motion to be relieved as his attorney, alleging that an appeal would be without merit. Counsel also filed a brief in which he contended that all adverse rulings were abstracted and discussed. The clerk of this court furnished Phillips with a copy of counsel's brief and notified him of his right to file pro se points for reversal; however, he did not exercise that right. Because Phillips's counsel failed to abstract and discuss all of the adverse rulings, this court ordered rebriefing in an unpublished opinion on June 25, 2003. Counsel has now submitted a second brief, which complies with this court's directive by abstracting and discussing all of the adverse rulings. Phillips has again declined to file pro se points for reversal. We affirm Phillips's conviction and grant counsel's motion to withdraw.

The evidence showed that Phillips entered the Trader Bill Outdoors store in Hot Springs in the early morning hours of August 10, 2001, and removed several rifles from the store. Later that morning, Phillips entered the Clarion Resort on Highway 7 South in Hot Springs, looked around, and quickly left. Approximately ninety seconds later, he reentered the Clarion armed with a rifle and jumped over the counter, demanding that the employee open the cash drawer and give him all of the cash. After the employee gave Phillips the money, he jumped back over the counter and exited the Clarion. The video surveillance camera from the Clarion captured the entire incident. The portion of the tape where Phillips initially entered the Clarion, looked around, and left was inadvertently erased; however, the portion where he entered with the rifle and demanded money remained on the tape.

Phillips filed a motion to suppress three statements he made to police, in which he confessed to committing the offenses of aggravated robbery and commercial burglary. At the hearing on the motion to suppress, the trial court took the motion under advisement. However, the trial court never ruled on the motion because Phillips decided to plead guilty to both charges prior to trial. Phillips, with the consent of the prosecutor, elected to have the trial court sentence him. The court sentenced him to ten years for the commercial burglary conviction and fifteen years for the aggravated robbery conviction. The court ordered that the sentences be served consecutively, over the objection of Phillips's counsel.

The first adverse ruling addressed by Phillips's counsel pertains to the motion to suppress. As Phillips's counsel asserts, the trial court never ruled on the motion because Phillips decided to enter a plea of guilty prior to trial. Thus, there is no adverse ruling to appeal from on this issue. However, in any event, Phillips waived his right to appeal an adverse decision on his motion to suppress by entering a guilty plea.

Arkansas Rule of Appellate Procedure-- Criminal 1(a) states that "there shall be no appeal from a plea of guilty or nolo contendere[,]" except as provided in Ark. R. Crim. P. 24.3(b). Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003). Rule 24.3(b) allows a defendant to enter a conditional plea of guilty, reserving in writing the right to appeal from an adverse determination of a pretrial motion to suppress evidence. Phillips did not enter a conditional plea of guilty in this case; in fact, prior to the acceptance of his guilty plea by the court, he indicated to the trial court that he understood that he was waiving his right to object to any errors that had occurred up to that point. Thus, there is no non-frivolous issue that could be raised on appeal with respect to Phillips's motion to suppress.

The remaining adverse rulings occurred during Phillips's sentencing hearing. An exception has been recognized to the general rule prohibiting an appeal from a guilty plea, where the appeal relates to an issue involving testimony or evidence that occurred during a sentencing hearing held separately from the guilty plea. Bradford, supra; Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). In holding that appellate review of nonjurisdictional issues arising subsequent to the entry of the guilty plea is not waived, the supreme court in Hill noted that an accused cannot waive a defect in proceedings that have not yet occurred. 318 Ark. at 414, 887 S.W.2d at 278.

The first ruling adverse to Phillips at the sentencing hearing occurred during his testimony, when he was giving an apology to the victim of the aggravated robbery. After apologizing, Phillips then went on to discuss in detail his experiences in jail and the violence he had witnessed among inmates. The State objected, arguing that Phillips had gone "a little far afield of an apology" to the victim. The trial court overruled the objection at that point. However, after Phillips continued to discuss at length what he had learned from his experiences in jail and then began to thank his attorney and several family members, the trial court interrupted and stated that the testimony was not relevant to sentencing and that it would have to sustain the State's earlier objection.

A trial court's ruling on the relevancy of evidence is discretionary and will not be reversed absent an abuse of discretion. Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000). According to Ark. Code Ann. § 16-97-103 (Supp. 2001), evidence relevant to sentencing may include relevant character evidence or evidence of mitigating circumstances. However, a defendant's testimony as to his experiences of prison life has previously been held not to be relevant in a sentencing hearing. Clark v. State, 328 Ark. 501, 944 S.W.2d 533 (1997). Also, the trial court did not abuse its discretion in not allowing Phillips to continue to thank family members, as this is not evidence that is relevant to his sentencing.

The next adverse ruling occurred when Phillips was testifying about a person named "Chuck," who Phillips alleged had forced him to commit the crimes of aggravated robbery and commercial burglary. Phillips testified that he had talked to the police about trying to find Chuck and that he knew an inmate who had said that he knew Chuck. When Phillips started to repeat exactly what this inmate had said, the State objected, and Phillips's trial counsel informed him that he could not repeat what someone else had said. Phillips then apologized, and his testimony continued.

As Phillips's counsel asserts, the State had properly objected on the basis of hearsay. Hearsay is defined as "a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted." Ark. R. Evid. 801(c). Hearsay evidence is not admissible in the absence of an applicable exception. Ark. R. Evid. 802. Here, Phillips conceded the validity of the State's hearsay objection, and thus no error can be asserted with respect to this issue.

After further testimony by Phillips about the existence of Chuck, the State again objected on hearsay grounds when Phillips attempted to testify that the police had told him that the reason they did not have time to try and locate Chuck was that they had been "snowed under." The trial court sustained this objection. A trial court's ruling on a hearsay objection should not be reversed unless there is an abuse of discretion. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997). Because Phillips was attempting to testify as to what someone had else had told him, the testimony was properly excluded as hearsay, and the trial court did not abuse its discretion in sustaining the State's objection.

The next adverse ruling occurred during the cross-examination of Phillips by the State. After Phillips had testified during direct examination that he had only committed the crimes under duress from Chuck, to whom he owed money, and that Chuck had threatened him, the State's questioning proceeded as follows:

State: Okay. Then you leave after taking the money, and I believe your testimony is that Chuck drops you back off at Margaret's?

Defendant: Right.

State: I mean, he's a nice fellow. He takes you all the way back to your previous place where you were staying both times.

Defendant: Yes sir.

State: Okay. But yet, he's gonna kill you and take your -- drown you in the lake and go kill your wife?

Defense Counsel: Objection. Argumentative.

Court: Overruled.

State: Yet, you say he's going to go kill you, drown you in the lake, and then go kill your family?

Defendant: That's what he said. Yes, sir.

The trial court's ruling on this point was not erroneous, as Phillips had testified earlier during direct examination that Chuck had threatened to kill him, throw him in the lake, and then go get his family if he did not commit the crimes. Thus, the State was entitled to cross-examine Phillips on this testimony. One who opens up a line of questioning or is responsible for the error may not complain of that error on appeal. Scott v. State, 325 Ark. 267, 924 S.W.2d 248 (1996). In addition, Phillips can show no prejudice from this adverse ruling because this line of questioning was merely cumulative to his earlier testimony, and this court will not reverse an evidentiary ruling in the absence of a showing of prejudice to the defendant. Id.

Also during the cross-examination of Phillips, the State questioned him as to whether numerous other vehicles had to try and avoid him when he was fleeing from the police in his vehicle. The testimony proceeded as follows:

State: And is [the State Trooper] incorrect if he were to say that there were numerous cars that had to evade you and he as he was chasing you out that way?

Defendant: I never -- I never crossed any vehicles. We turned down -- from Lake -- on two seventy (270) down Treasure Isle --

State: Did other cars have to avoid you or not?

Defense Counsel: Your Honor, he's trying to answer the question.

Court: I disagree.

Defendant: I don't -- I don't recall seeing any vehicles. There may have been.

Arkansas Rule of Evidence 611(a) provides that the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth, to avoid needless consumption of time, and to protect witnesses from harassment or undue embarrassment. Here, although the State interrupted Phillips, he was not answering the question that was asked of him. Thus, it was not error to allow the State to interrupt Phillips's explanation and to repeat the question it wished answered. Also, Phillips can demonstrate no prejudice from this ruling, as he was ultimately allowed to answer the question by stating that he did not recall seeing any other vehicle try to avoid him.

The final adverse ruling occurred when the trial court ordered that Phillips's sentences for aggravated robbery and commercial burglary be served consecutively. Phillips's counsel objected, arguing that the two offenses were part of a single criminal episode and that because they would constitute one crime for habitual purposes, the sentences should run concurrent to each other. The trial court disagreed with this argument and ran the sentences consecutively.

The question of whether sentences should run consecutively or concurrently lies solely within the discretion of the trial court, and the appellant assumes a heavy burden of demonstrating that the trial judge failed to give due consideration to the exercise of his discretion in ordering consecutive sentences. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). The trial judge is not required to explain its reasons for running the sentences consecutively. Id. Here, the trial judge heard all of the evidence in the sentencing hearing and decided to run the sentences consecutively, even after Phillips's objection. As Phillips's counsel asserts, there is no authority to support the argument that sentences for offenses that are part of a single criminal episode are required to run concurrently, and thus, there would be no merit to an appeal on this issue.

There are no other adverse rulings contained in the record. From a review of the record and the brief presented to this court, we find compliance with Rule 4-3 (j) of the Rules of the Arkansas Supreme Court and Court of Appeals and that this appeal is without merit. Accordingly, we grant counsel's request to withdraw as Phillips's attorney and affirm Phillips's conviction for aggravated robbery.

Affirmed.

Gladwin and Griffen, JJ., agree.