FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. 66FCR-05-897] HONORABLE JAMES O. COX, JUDGE.
Burns Law Firm, PLLC, by: Jack D. Burns, for appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, JUDGE.
Alan Anderson appeals from a Sebastian County Circuit Court
order revoking his suspended imposition of sentence (SIS) and
sentencing him to fifteen years in the Arkansas Department of
Correction (ADC) with another nine years suspended. On
appeal, he argues that the revocation was improper because
the SIS was an illegal sentence. Specifically, he contends
that because he was sentenced as a habitual offender with
four or more prior felony convictions, the SIS was not
statutorily allowed. We disagree and affirm.
February 10, 2006, Anderson entered guilty pleas to two
counts of theft by receiving, a Class B felony, and three
counts of commercial burglary, a Class C felony. For the
theft charges, the circuit court sentenced him as a habitual
offender to a term of 240 months in the ADC with an
additional SIS for 240 months. The information indicated that
Anderson had "previously been convicted of four (4) or
more felonies[.]" The judgment-and-commitment order
reflects that Anderson was sentenced as a habitual offender
under Arkansas Code Annotated section 5-4-501(b)[(1)(A)(ii)
(Supp. 2005)], which authorizes an enhanced sentence if the
defendant has been convicted of four or more felonies.
appeal pertains to an amended petition to revoke
Anderson's SIS, which the State filed on July 26, 2017.
The petition alleged that since his previous revocation,
Anderson had committed the new offenses of residential
burglary, aggravated assault, and third-degree domestic
battering, and that he had failed to pay his restitution,
court costs, and public-defender fee. At the conclusion of the
August 24, 2017 hearing on the amended petition, the circuit
court found that Anderson had violated the terms and
conditions of his SIS based on testimony that he had kicked
in the door of a residence and pointed a gun at the man who
lived there. The circuit court also found that he had failed
to make his court-ordered payments as directed. The circuit
court revoked Anderson's SIS and sentenced him to a term
of fifteen years in the ADC, with another nine years
suspended. Anderson now appeals.
argues for the first time that because he was a habitual
offender the circuit court could not suspend the imposition
of any part of his sentence and that the SIS he received in
2006 was therefore illegal. Consequently, he maintains that
in 2017 the circuit court lacked the authority to revoke an
illegally imposed SIS. See, e.g., Taylor v.
State, 354 Ark. 450, 457, 125 S.W.3d 174, 179 (2003)
(holding that a court cannot revoke an SIS that was illegally
imposed; the remedy is to remand for resentencing).
well settled that we will address an allegation that a
sentence is illegal even if it is raised for the first time
in an appeal from a revocation. See, e.g.,
Harness v. State, 352 Ark. 335, 339, 101 S.W.3d 235,
238 (2003); Vanoven v. State, 2011 Ark.App. 46, at
3, 380 S.W.3d 507, 510. When Anderson entered his guilty
pleas in 2006, as now, it was illegal for a court to sentence
the defendant solely to SIS or probation when the defendant
was a habitual offender with two or more prior felony
convictions. Ark. Code Ann. § 5-4-301(a)(2)(A)-(B)
(Repl. 2006). However, that is not what occurred here. In
2006, the circuit court sentenced Anderson as a habitual
offender to a term of 240 months in the ADC and an SIS for
now to two cases in which our court has addressed similar
arguments regarding an original sentence being illegal
because of the defendant's habitual-offender status and
the circuit court's lack of authority to suspend a
portion of it. In Chadwell v. State, 80 Ark.App.
133, 135-36, 91 S.W.3d 530, 531-32 (2002), Chadwell was
sentenced in 1992 as a habitual offender to twenty years'
imprisonment with ten years suspended. On appeal from a
subsequent revocation of the suspended portion of the
sentence, he argued, as Anderson does here, that the SIS was
an illegal sentence and that it could not be revoked.
Id. Our court disagreed, holding that because the
circuit court also sentenced Chadwell to a ten-year prison
term, it "did not lack authority" to impose the
additional ten-year suspended sentence. Id.
court again addressed this issue in 2016. In Todd v.
State, 2016 Ark.App. 204, at 4-5, 489 S.W.3d 207, 209,
we noted that the General Assembly had never rejected our
court's holding in Chadwell-that a circuit court
can suspend a portion of a habitual-offender sentence when it
also imposes a term of imprisonment. "The legislature is
presumed to be familiar with the appellate courts'
interpretation of its statutes, and it can amend a statute if
it disagrees with those interpretations; absent such an
amendment, the interpretation of the statute remains the
law." Id. (quoting Pedraza v. State,
2015 Ark.App. 205, at 5, 465 S.W.3d 426, 430). Todd was a
habitual offender with ten prior felony convictions when he
was charged with new crimes in 2009. When he pled nolo
contendere to the new charges, the circuit court sentenced
him to concurrent terms of eight years' imprisonment to
be followed by seven years' SIS. Our court, relying on
Chadwell, rejected Todd's argument that the SIS
was illegal because he was a habitual offender. Id.
at 5, 489 S.W.3d at 209.
relies most heavily on State v. Joslin, 364 Ark.
545, 222 S.W.3d 168 (2006). However, it is distinguishable
from the case at hand. In Joslin, the circuit court
placed the appellant on probation for five years without
imposing any term of imprisonment, even though Joslin was a
habitual offender. Our supreme court held that the probation
was illegal under section 5-4-301(a)(2)(B) and reversed and
remanded to the circuit court. Id. In that case, the
circuit court did not have the authority to sentence Joslin
solely to probation because she was a habitual offender.
Because she was charged by the State as a habitual offender
and she pled guilty to a Class C felony as a habitual
offender, she was only eligible for a sentencing range of
three to twenty years' imprisonment pursuant to statute.
Id. Here, Anderson was sentenced to a term of
imprisonment in the ADC before his SIS began, so his reliance
on Joslin is misplaced.
on our precedent, the circuit court in 2006 was clearly
within its authority to impose an SIS following the prison
term to which it sentenced Anderson. Accordingly, the same
court, in 2017, was also within its authority to revoke
Anderson's SIS upon finding that ...