FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NOS. 66FCR-07-447, 66GCR-05-82, AND 66GCR-05-83] HONORABLE
STEPHEN TABOR, JUDGE
Brasuell Law Firm, PLLC, by: Toney Brasuell, for appellant.
Rutledge, Att'y Gen., by: Rachel Kemp, Ass't
Att'y Gen., for appellee.
W. GRUBER, CHIEF JUDGE
Adam Shaffer appeals from an order of the Sebastian County
Circuit Court revoking his suspended imposition of sentence
(SIS) in three separate cases and sentencing him to a total
of thirty years' imprisonment. On appeal, appellant
contends that the circuit court was without jurisdiction to
revoke his suspended sentences. We affirm in part and reverse
and remand in part.
16, 2005, appellant was charged in case No. CR2005-82 with
residential burglary, class B felony, pursuant to Ark. Code
Ann. § 5-39-201 (Repl. 2013). On the same day, appellant
was charged in case No. CR2005-83 with two counts of breaking
and entering in violation of Ark. Code Ann. § 5-39-202,
class D felonies, and theft of property in violation of Ark.
Code Ann. § 5-36-103, a class C felony. Appellant entered
a guilty plea to all charges and was sentenced to twenty-four
months' imprisonment in each of the cases to run
concurrently, with sixty months' SIS for residential
burglary, forty-eight months' SIS for breaking or
entering, and sixty months' SIS for theft of property.
The judgment and commitment order was entered May 8,
2006. A "Prosecutor's
Report/Penitentiary Synopsis" signed by the deputy
prosecuting attorney was filed on June 12, 2006, as well as
an amended judgment and commitment order, reflecting that the
departure report had not been attached to the judgment.
April 8, 2007, appellant was charged in case No. CR2007-447
with possession of drug paraphernalia in violation of Ark.
Code Ann. § 5-64-403, a class C felony. The State then
filed a petition to revoke in CR2005-82 and CR2005-83 on
April 10, 2007, alleging that appellant was in violation of
the terms and conditions of his suspended sentence based on
the new charge in CR2007-447.
April 16, 2007, Judge Steven Tabor filed an order to recuse
in CR2005-1233, CR2005-82, and CR2005-83, indicating that the
causes were pending before the circuit court on the
State's petition to revoke. The recusal order provided
that Judge Tabor had "previously served as Prosecuting
Attorney at the time the Defendant was prosecuted and
received the sentence which the State now wishes to
revoke." The order directed the circuit clerk to
reassign this case. An affidavit of Nancy Brewer, Sebastian
County circuit clerk, also filed April 16, 2007, indicates
that the case was reassigned to Judge James O. Cox.
September 7, 2007, appellant pleaded guilty to the charge of
possession of drug paraphernalia in CR-2007-447 and entered
the Sebastian County Drug Court Program. Judge Tabor
sentenced appellant to a two-year SIS, conditioned upon
compliance in the drug court. On the same day, the State
filed a motion to withdraw the petition to revoke based on
the transfer to drug court.
State filed another petition to revoke on September 8, 2009,
in cases CR2005-82, CR2005-83, and CR2007-447, on the grounds
that appellant had violated the terms and conditions of his
suspended sentences. Specifically, the State alleged
appellant failed several drug tests, failed to appear, and
fled from the Regional Correctional Facility. On January 13,
2010, appellant entered a no-contest plea to the State's
petition to revoke and was sentenced to twenty-four
months' imprisonment for each case to be served
concurrently, and ninety-six months' SIS for the
residential-burglary conviction in CR2005-82, forty-eight
months' SIS the breaking-or-entering conviction in
CR2005-83, ninety-six months' SIS for the
theft-of-property conviction in CR2005-83, and ninety-six
months' SIS for the possession-of-drug-paraphernalia
conviction in CR2007-447.
February 7, 2018, the State filed a petition to revoke in
CR2005-82, CR2005-83, and CR2007-447, alleging that appellant
was released from the Arkansas Department of Correction on
November 26, 2010, and thereafter committed the offense of
battery in the second degree on January 24, 2018, in
violation of the terms and conditions of his suspended
sentences. A hearing on the petition to revoke took place on
March 8, 2018. Judge Tabor found that appellant had committed
the offense of second-degree battery and was in violation of
the terms of his suspended sentences. Appellant's
suspended sentences were revoked, and appellant was sentenced
to 192 months' imprisonment for the residential-burglary
charge in CR2005-82, seventy-two months' imprisonment for
the theft-of-property charge in CR2005-83, and ninety-six
months' imprisonment for possession-of-drug-paraphernalia
charge in CR2007-447, with the sentences to run
consecutively. The judgment and commitment order was entered
March 14, 2018, and appellant filed a timely notice of
sole point on appeal, appellant argues that the circuit court
was without jurisdiction or authority to revoke his suspended
sentences in all three cases.
Arkansas Constitution, article 7, § 20, as well as the
Arkansas Code of Judicial Conduct, provides that judges must
refrain from presiding over cases in which they might be
interested and must avoid all appearances of bias. Irvin
v. State, 345 Ark. 541, 549, 49 S.W.3d 635, 640 (2001).
The decision to recuse is within the circuit court's
discretion, and it will not be reversed absent abuse.
Id. The case before us does not deal with the issue
of whether the circuit judge should have recused. Rather, the
issue presented is whether Judge Tabor, having recused by his
own order in 2007, thereafter had jurisdiction or authority
to hear appellant's revocation cases in 2018.
contends that Judge Tabor, "by voluntarily recusing
himself from Appellant's cases, lost jurisdiction and was
without authority to act further in any judicial capacity
rendering every judicial act since the recusal null and
void." He cites Bolden v. ...