FROM THE HEMPSTEAD COUNTY CIRCUIT COURT. NOS. CR-2009-74 and
CR-2009-75. HONORABLE DUNCAN CULPEPPER, JUDGE.
Appellant: Anthony Shawn Biddle.
Appellee: Valerie Glover Fortner, Pamela Rumpz.
GRUBER, Judge. ABRAMSON and VAUGHT, JJ., agree.
W. GRUBER, Judge
Todd appeals the sentences that the Circuit Court of
Hempstead County imposed on him after it revoked his
suspended imposition of sentence (SIS) in two criminal cases.
He contends, as he did at the revocation hearing, that it was
error for the circuit court (1) to run the sentences
consecutively rather than concurrently and (2) to sentence
him without evidence of the date on which the SIS began in
the underlying cases. He also argues on appeal that his
original sentences were facially illegal pursuant to Ark.
Code Ann. § 5-4-301(a)(2)(A) (Supp. 2009). See
State v. Webb, 373 Ark. 65, 69, 281 S.W.3d 273, 276
(2008) (noting that a void or illegal sentence is an issue of
subject-matter jurisdiction, which cannot be waived by the
parties and may be addressed for the first time on appeal).
number CR-2009-74, Todd was charged as a habitual offender
with ten Class C felonies--nine counts of fraudulent use of a
credit card or debit card, and one count of theft by
receiving. In case number CR-2009-75, he was charged as a
habitual offender with Class D felony breaking or entering
and Class C felony theft of property, and was also charged
with two Class A misdemeanors--theft of property and
fraudulent use of a credit card or debit card. He pleaded no
contest to all charges and on May 28, 2009, was sentenced on
each felony to concurrent terms of eight years'
imprisonment in the Arkansas Department of Correction (ADC)
to be followed by seven years' SIS. Conditions of the SIS
required that Todd obey all federal and state laws.
4, 2014, the State filed its petition to revoke his SIS in
both cases, alleging that Todd had violated conditions by
committing the crime of forgery in Howard County--for which
he had been convicted--and the crimes of commercial burglary,
breaking or entering, and theft of property in Hempstead
County. At a June 9, 2014 revocation hearing, the circuit
court found the allegations in the revocation petition to be
true. Todd objected to sentencing without proof of his
release from the ADC. The circuit court took the matter under
advisement. On June 11, 2014, the State filed a motion to
reopen the record for supplemental proof. In a previous
opinion, we recounted the proceedings that took place when
the revocation hearing resumed:
On June 16, 2014, the circuit court granted the State's
motion to reopen record for supplemental proof. The State
entered a certified copy of the PEN pack, and the circuit
court found that appellant had five years remaining on his
Based upon that finding, appellant was sentenced, in
CR-2009-74, to ten sixty-month sentences to run consecutive
to each other and consecutive with the Howard County case and
the other Hempstead County cases. In CR-2009-75, the circuit
court sentenced appellant to two sixty-month sentences to run
consecutive to each other and consecutive with CR-2009-74 and
consecutive with the Howard County case and the other
Hempstead County cases for a total, in both cases, of sixty
years in the ADC. Sentencing orders were filed on June 26,
2014, and amended sentencing orders were filed on July 8,
Todd v. State, 2015 Ark.App. 356, at 2-3, 465 S.W.3d
now argues in his first point that at the time of his
revocation sentencing, the circuit court lacked jurisdiction
" to change, modify, alter, or amend the judgment from
concurrent to consecutive." See Burks v.
State, 2009 Ark. 598 at 4 n.2, 359 S.W.3d 402, 406
(noting that a circuit court may not modify a valid sentence
once execution of the sentence has begun); Lambert v.
State, 286 Ark. 408, 409, 692 S.W.2d 238, 239 (1985)
(stating the general rule that if the original sentence is
illegal, even though partially executed, the sentencing court
may correct it). He also argues that his original sentencing
of seven years' SIS was illegal on its face under Ark.
Code Ann. § 5-4-301(a)(2)(A), which prohibits suspending
imposition of sentence if the defendant has previously been
convicted of two or more felonies.
Because sentencing is entirely a matter of statute in
Arkansas, no sentence is to be imposed other than as
statutorily prescribed. Ark. Code Ann. § 5-4-104 (Supp.
2009); e.g., Esry v. State, 2014 Ark. 539,
at 4, 453 S.W.3d 144, 146 (per curiam). A sentence within the
limits set by statute is a legal sentence, and a void or
illegal sentence is one exceeding the statutory parameters
for the convicted defendant's offense. Id.
argues that in May 2009 the trial court did not have
authority to sentence him to a suspended sentence because, as
a habitual offender, he was not entitled to a suspended
sentence under Ark. Code Ann. § 5-4-301(a)(2)(A). He