ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION III
CACR03-1056
June 2, 2004
CHRIS WILLIAMS AN APPEAL FROM SALINE
APPELLANT COUNTY CIRCUIT COURT
[CR01-567-3]
V. HON. GRISHAM PHILLIPS, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
Wendell L. Griffen, Judge
Appellant Chris Williams was sentenced to forty years in the Department of Correction for an aggravated robbery conviction in Saline County Circuit Court. Appellant received a ten year enhancement for use of a deadly weapon during the commission of the robbery to run consecutive with the aggravated robbery conviction. In addition, appellant received five years in the Department of Correction for a theft of property conviction and five years for a felon in possession conviction, both to run concurrent with the aggravated robbery conviction. Appellant contends that the trial court erred by imposing an illegal sentence, namely the ten year enhancement for use of a deadly weapon during the commission of the robbery. We find that the enhanced sentence was not illegal. Thus, we affirm.
On October 8, 2001, criminal information was filed in Saline County charging appellant with aggravated robbery, theft of property, possession of firearms by certain persons, and the deadly weapon enhancement pursuant to Ark. Code Ann. § 16-90-121 (Repl.1987) as an habitual offender. These charges stemmed from the events that took place on April 30, 2001.
On April 30 around eight-thirty at night, Patty Ann Knight was traveling down Chicot Road, when she decided to stop at the Corner Store to get a Mountain Dew. While paying for the Mountain Dew, Ms. Knight noticed a man with bleached blonde hair, a black shirt, and khaki pants walking slowly by the window. She thought the man's conduct was "weird," but dismissed it and began walking to her car. While she was inside her car preparing to leave the store's parking lot, a man approached her vehicle on the passenger side. He had a gun and demanded her purse. Ms. Knight tried to exit her vehicle, but the assailant entered the car before she could exit. She eventually gave the man her purse.
Appellant's trial took place on July 2, 2003. Appellant left during his trial, and the jury convicted him in his absence. The jury found beyond a reasonable doubt that appellant was guilty of aggravated robbery with a deadly weapon and theft of property. In regard to the firearm enhancement, the jury found beyond a reasonable doubt that appellant employed a firearm as a means of committing the aggravated robbery, thus entitling him to receive the enhancement. During the next phase of the trial, the jury found that appellant was guilty of being a felon in possession of a firearm. Then the jury sentenced appellant to fifty years in the Department of Correction, ten years resulting from the enhancement for the use of the deadly weapon.
The court informed the jury that "[e]mploying a firearm as a means of committing aggravated robbery or theft of property is punishable by imprisonment in the Arkansas Department of Correction for an extended term not to exceed fifteen years. The term of imprisonment for employing a firearm is in addition to any term of imprisonment for the offense of aggravated robbery and/or theft of property." This was pursuant to Ark. Code Ann. § 16-90-120(a) (Repl. 1987). The jury was then given an instruction on the enhancement statute. The jury instruction read as follows:
We, the Jury having found beyond a reasonable doubt that Christopher Thomas Williams employed a firearm as a means of committing Aggravated Robbery and/or Theft of Property either do or do not recommend that Christopher Thomas Williams' sentence be extended by a term of years, not to exceed 15.
The jury found that appellant was guilty of aggravated robbery and theft of property and that he employed a firearm as a means of committing aggravated robbery and theft of property. The jury recommended his sentence be enhanced by a term of ten years.
Appellant was sentenced on July 28, 2003, pursuant to the jury's recommendations. He was sentenced to forty years for aggravated robbery, five years for theft of property, and five years for being a felon in possession, all concurrent. Appellant was also sentenced to ten years under the enhancement statute for use of a deadly weapon during the commission of the robbery. According to the judgment and commitment order, appellant's sentence was enhanced pursuant to Ark. Code Ann. § 16-90-121 (Repl. 1997.) Appellant was sentenced to a total of 600 months in the Department of Correction.
Appellant contends that the trial court imposed an illegal sentence by enhancing appellant's sentence by ten years. An illegal sentence is illegal on its face. Cooley v. State, 322 Ark. 348, 909 S.W.2d 312 (1995). When the sentence given is within the maximum prescribed by law it is not illegal on its face. Id.
This case does not involve an illegal sentence. Appellant was sentenced pursuant to Ark. Code Ann. § 16-90-120(a) which reads:
(a) Any person convicted of any offense which is classified by the laws of this state as a felony who employed any firearm of any character as a means of committing or escaping from the felony, in the discretion of the sentencing court, may be subjected to an additional period of confinement in the state penitentiary for a period not to exceed fifteen (15) years.
Although the criminal information and judgment and commitment order cited Ark. Code Ann. § 16-90-121 as the enhancement statute, the jury instruction and the oral instructions given by the judge contained the express language found in Ark. Code Ann. § 16-90-120(a). Ark. Code Ann. § 16-90-121 reads:
Any person who is found guilty of or pleads guilty to a felony involving the use of a deadly weapon, whether or not an element of the crime, shall be sentenced to serve a minimum of ten (10) years in the state prison without parole but subject to reduction by meritorious good-time credit.
The trial court did not use this language in either the juror's written instructions or the judge's oral instructions to the jury.
Appellant claims error because his sentence was enhanced pursuant to Ark. Code Ann. § 16-90-120(a), and that statute was not listed on the criminal information. Since appellant did not raise the issue of notice and the issue is not relevant, we will not address it. Whether or not listing the wrong statute number on appellant's criminal information is such a fundamental error as to render the judgment void is an issue that has been decided by the Arkansas Supreme Court.
In Madewell v. State, 290 Ark. 580, 720 S.W.2d 913 (1986), the criminal information charged appellant with three counts of aggravated robbery, a Class Y felony, but the prosecutor listed the statute number that corresponded to robbery, a Class B felony. The court held that the listing of a wrong statute number on the criminal information was not so fundamental an error as to render the judgment void. Madewell is directly analogous to this case. The criminal information referenced the deadly weapon enhancement, but listed the statute number that corresponded to the statute that lists the minimum sentence allowed for a repeat offender. This mistake was not a fundamental error because the jury instruction and the oral instruction given by the judge addressed the correct statute.
Appellant's judgment and commitment order listed an incorrect statute number for the enhancement of appellant's sentence. This mistake does not constitute an illegal sentence. Judgments are generally construed like other instruments and the determinative factor is the intention of the court, gathered from the judgment itself and the record including the pleadings and the evidence. Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003). The intent of the court was clearly to enhance appellant's sentence pursuant to Ark. Code Ann. § 16-90-120(a). This was evident by the judge's oral instructions to the jury and the language in the written jury instructions. The pleadings exhibit the prosecutor's intent to enhance appellant's sentence. The completed jury form showed the intent of the jury to give appellant an additional ten years.
In construing any statute, we place it beside other statutes relevant to the subject matter and ascribe meaning and effect to be derived from all the relevant statutes. Hagar v. State, 341 Ark. 633, 19 S.W.3d 16 (2000). Statutes relating to the same subject matter should be construed together and in harmony. Id. In Hagar, the court read Ark. Code Ann. § 5-1-102(4) (Repl. 1997), which defines the term "deadly weapon," in conjunction with Ark. Code Ann.§ 16-90-120 and Ark. Code Ann. § 16-90-121. Mrs. Hagar argued on appeal that the trial court erred when it sentenced her to ten years in the Arkansas Department of Correction pursuant to Ark. Code Ann. § 16-90-121 because the jury did not find her guilty of a felony involving a "deadly weapon." She contended that the appropriate statute for any enhancement is Ark. Code Ann. § 16-90-120, based upon the jury's finding that she used a "firearm." The supreme court rejected Mrs. Hagar's argument and held that the trial court did not err.
Although appellant's criminal information and judgment and commitment form referred to Ark. Code Ann. § 16-90-121 as an enhancement statute, analyzing Ark. Code Ann. § 16-90-121 in conjunction with Ark. Code Ann. § 16-90-120 and taking into account the intention of the court derived from jury instructions and oral instructions given by the judge, appellant's sentence was not illegal.
For the foregoing reasons we affirm the trial court's convictions. Appellant did not receive an illegal sentence. Rather, the sentence is specifically permitted by Ark. Code Ann. § 16-90-120(a).
Affirmed.
Roaf, J., agrees.
Hart, J., concurs.
Josephine Linker Hart, Judge, concurring. I agree that this case must be affirmed because contrary to Williams's argument, the 600 month sentence that he received for aggravated robbery is within the forty-year-to-life range for a Class Y felony, and therefore is not illegal on its face. Ark. Code Ann. § 5-4-401 (Repl. 1997). Nonetheless, I write separately to underscore the fact that the sentence reflected on the judgment and commitment order is wrong.
The criminal information that was filed clearly and unambiguously stated that the State was seeking enhancement under Arkansas Code Annotated section 16-90-121 (Repl. 1997), which provides that: "Any person who is found guilty of or pleads guilty to a felony involving the use of a deadly weapon, whether or not an element of the crime, shall be sentenced to serve a minimum of ten (10) years in the state prison without parole but subject to reduction by meritorious good-time credit." The judgment and commitment order also states that Williams was sentenced under this very same code section, 16-90-121. However, we know from the jury verdict form in the addendum that the jury fixed Williams's sentence for the underlying felony at only 480 months. In Crespo v. State, 30 Ark. App. 12, 780 S.W.2d 592 (1989), we said: "The application of § 16-90-121 does not impose an additional sentence, but merely precludes the possibility of Crespo being eligible for parole before serving ten years, subject to reduction for meritorious good-time."
This is not a case of scrivener's error, however. The additional ten years that was added to Williams's sentence came as a result of a jury verdict on an instruction and special interrogatory that was reflective of Arkansas Code Annotated section 16-90-120 (Repl. 1997), which provides that:
(a) any person convicted of any offense which is classified by the laws of this state as a felony who employed any firearm of any character as a means of committing or escaping from the felony, in the discretion of the sentencing court, may be subjected to an additional period of confinement in the state penitentiary for a period not to exceed fifteen (15) years.
(b) The period of confinement, if any, imposed pursuant to this section shall be in addition to any fine or penalty provided by law as punishment for the felony itself. Any additional prison sentence imposed under the provisions of this section, if any, shall run consecutively and not concurrently with any period of confinement imposed for conviction of the felony itself.
However, Williams's trial counsel failed to object to this instruction. It is well settled that a criminal defendant's failure to object to an erroneous jury instruction precludes raising an argument based on that error on appeal. See Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). Therefore, in spite of the fact that the sentence is clearly wrong, we are precluded from correcting this injustice on direct appeal. Williams, therefore, is left only with such relief as may be provided under Rule 37 of the Arkansas Rules of Criminal Procedure. See Reynolds v. State, 341 Ark. 387, 18 S.W.3d 331 (2000) (failure to object to erroneous jury instruction denied defendant of the right to a jury trial on the elements upon which a conviction for first-degree murder must be predicated).
I concur.