FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17CR-08-599]
HONORABLE GARY COTTRELL, JUDGE
Lisa-Marie Norris, for appellant.
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
J. GLADWIN, Judge
Linda Dodds appeals the revocation of her suspended
imposition of sentence (SIS) after which she was sentenced to
six years' incarceration in the Arkansas Department of
Correction (ADC). Appellant claims that (1) her original
sentence was illegal and could not be revoked, (2) the
revocation violated ex post facto laws, (3) her sentence
could not be revoked because the underlying plea agreement
was unenforceable, and (4) there was insufficient evidence to
revoke her SIS. We reverse and dismiss the revocation and
remand to the trial court to correct the original sentence to
show that the SIS runs concurrent to the term of imprisonment
in the Regional Correctional Facility (RCF).
December 29, 2008, the State filed a felony information
against appellant alleging possession of marijuana with
intent to deliver, simultaneous possession of drugs and
firearms, and possession of oxycodone with intent to deliver.
On August 6, 2009, appellant pleaded guilty and was sentenced
to forty-eight months in the RCF plus 120 months' SIS to
State filed its initial petition to revoke on May 12, 2016,
based on allegations of the commission of new offenses (May
2, 2016, possession of hydromorphone, a Class D felony, and
charged as a habitual offender). Amended petitions were filed
on June 24, 2016 (June 17, 2016, theft of property, a Class D
felony, and charged as a habitual offender); and July 20,
2016 (May 11, 2016, failure to appear). And on October 6,
2016, the State filed a third amended petition to revoke,
alleging that she committed the new offenses of possession of
hydromorphone, theft of property, failure to appear (added
date of August 2, 2016, related to the revocation hearing),
and possession of drug paraphernalia (August 17, 2016, a
Class B felony); possession of methamphetamine (August 17,
2016, a Class D felony); and possession of marijuana (August
17, 2016, a Class A misdemeanor). On December 7, 2016, the
trial court held a hearing on the State's petition to
hearing, appellant argued that her SIS was illegal because it
was ordered to run consecutively to her four-year sentence at
the RCF in violation of Walden v. State, 2014 Ark.
193, 433 S.W.3d 864. Both the trial court and the State
acknowledged that appellant's SIS should have run
concurrently with her sentence of imprisonment. Under
Limbocker v. State, 2016 Ark. 415, 504 S.W.3d 592,
when an SIS was illegally ordered to run consecutively to a
term of imprisonment for a different offense, the trial court
was permitted to amend the illegal sentence and subsequently
revoke the SIS. Here, however, appellant never requested the
trial court to correct her illegal sentence, and there is no
indication that the trial court modified appellant's
illegal sentence before the revocation.
instead argued that, contrary to Limbocker, the
trial court could not amend her illegal sentence and then
revoke her SIS because she would be subjected to additional
penalties in violation of the ex post facto laws. Appellant
also alleged that the trial court could not revoke her SIS
because the underlying plea agreement was unenforceable and
illegal in that her SIS ran consecutively to her term of
imprisonment. After hearing appellant's arguments, the
trial court specifically held that "there [was] no
additional penalty" and rejected appellant's ex post
facto argument. The trial court never ruled on
appellant's argument that her 2009 negotiated plea
agreement was unenforceable.
State then presented evidence that appellant failed to comply
with the terms and conditions of her SIS by failing to appear
at two hearings-one on May 11, 2016, and then again on August
3, 2016. The trial court found by a preponderance of the
evidence that appellant had violated the terms of her SIS,
and it revoked it; she was sentenced to six years'
incarceration in the ADC pursuant to a sentencing order filed
on December 14, 2016. A notice of appeal was timely filed on
December 22, 2016.
undisputed that as part of the revocation hearing,
appellant's counsel and the trial court discussed the
illegality of appellant's original sentence; however, the
record does not reflect that the trial court amended
appellant's illegal sentence from the bench or that there
was a subsequent entry of any amended sentencing order.
Accordingly, appellant maintains that her illegal sentence as
set forth in her original judgment and commitment order still
stands and that her SIS cannot be revoked on an underlying
sentence that is illegal. Walden, supra;
Seamster v. State, 2009 Ark. 258, 308 S.W.3d 567.
State acknowledges, and we agree, that appellant's
original sentence was illegal. Arkansas Code Annotated
section 5-4-307(b)(2) (Repl. 2013) provides that suspended
sentences imposed with terms of imprisonment for different
crimes must run concurrently, not consecutively. See
Limbocker, 2016 Ark. 415, at 2-3, 504 S.W.3d at 593.
Although appellant's original sentence was illegal
because the trial court ordered her SIS to run consecutively
to a term of imprisonment at the RCF, the trial court may
correct an illegal sentence at any time even though it has
been partially executed. Id. at 2, 504 S.W.3d at
593. Our supreme court has noted that "the effect of
amending an illegal sentencing order is not to nullify the
entirety of the order." Id. at 3, 504 S.W.3d at
593. Accordingly, we hold that the proper remedy pursuant to
Limbocker, supra, would have been for the
trial court to modify the original sentencing order, rather
than to dismiss the State's petition to revoke-but the
trial court failed to do so. Appellant's SIS term should
have commenced in August 2009 when she originally pleaded
guilty, and if properly amended will run until August 2019.
Because appellant could still be subject to revocation of the
SIS if she commits a violation before that time, we remand to
the trial court to correct the sentencing order in accordance
with this opinion to reflect that her SIS ran concurrently to
her sentence to the RCF.
was aware of, and cited the trial court to
Limbocker, supra, at the revocation
hearing, yet she neither requested nor wanted that result and
never asked the trial court to correct her sentence. That
said, both the State and the trial court acknowledged that
appellant's ten-year SIS should have been ordered to run
concurrently to her sentence to the RCF. The trial court
subsequently revoked appellant's SIS for violations she
had committed in 2016, which "fell within the period of
the legal [SIS]." Id. at 3, 504 S.W.3d at 593.
Because the trial court failed to first correct the original
sentencing order before revoking appellant's SIS, we hold
that the revocation was improper because the original illegal
sentence was still in place. Accordingly, we reverse and
dismiss the revocation.
we are reverse and dismiss the revocation of appellant's
SIS, we need not reach appellant's additional arguments
regarding ex post facto violations, the unenforceability of
her underlying plea ...