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Starks v. State

Court of Appeals of Arkansas, Division III

March 27, 2019

WILLIAM STARKS APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION [NOS. 60CR-17-2907 AND 60CR-17-3937] HONORABLE BARRY SIMS, JUDGE.

          Tyson K. Spradlin, for appellant.

          Leslie Rutledge, Att'y Gen., by: David L. Eanes, Jr., Ass't Att'y Gen., for appellee.

          LARRYD. VAUGHT, JUDGE.

         William Starks pled guilty to two offenses in two separate cases. The Pulaski County Circuit Court entered two sentencing orders; one for each conviction. Starks appeals the sentencing orders, raising two points: (1) the circuit court erred in sentencing him based on a presentence report that contained an error; and (2) the circuit court erred in failing to advise him that he would be sentenced to imprisonment rather than probation in violation of Arkansas Rule of Criminal Procedure 25.3(c). We affirm in part and dismiss in part.

         On August 21, 2017, the State charged Starks in case No. CR-17-2907 with theft by receiving and an enhancement for being a habitual criminal. On November 14, 2017, Starks was charged in case no. CR-17-3937 with theft of property and an enhancement for being a habitual criminal. On February 21, 2018, Starks signed plea statements in each case, and the State nol-prossed the habitual-offender-sentencing enhancement in each case. The circuit court requested a presentence report and set the case for a sentencing hearing on March 12, 2018.

         At the sentencing hearing, the presentence report was entered into evidence. The report recited allegations supporting the charges against Starks and his criminal history that included a list of six misdemeanor convictions and nine felony convictions. The report further provided that the "Arkansas Sentencing Standards Grid offers 42 months in the Arkansas Department of Correction" for each crime. No other evidence or testimony was presented. Starks's counsel requested that Starks be sentenced to probation, which he was eligible for after the State nol-prossed the habitual-offender charges.

         The court sentenced Starks to forty-two months' imprisonment for theft by receiving and forty-two months' imprisonment for theft of property, to run concurrently, with a ten-day credit in each case for time he had served in jail. Sentencing orders in each case were entered, and this appeal followed.

         Before reaching the merits of Starks's points on appeal, we must address the State's contention that Starks's appeal must be dismissed for lack of jurisdiction. Arkansas Rule of Appellate Procedure-Criminal 1(a) (2018) provides that there is no direct appeal from a plea of guilty. There are three exceptions: (1) when a conditional plea of guilty is premised on an appeal of the denial of a suppression motion pursuant to Arkansas Rule of Criminal Procedure 24.3; (2) when there is a challenge to testimony or evidence presented before a jury in a sentencing hearing[1] separate from the plea itself; and (3) when the appeal is from a posttrial motion challenging the validity and legality of the sentence itself. Cartwright v. State, 2017 Ark.App. 100, at 4-5, 514 S.W.3d 494, 497. Absent one of the exceptions, a defendant waives the right to appeal when he or she pleads guilty. Id. at 5, 514 S.W.3d at 497.

         Because this case does not involve an appeal from a conditional guilty plea under Rule 24.3 of the Arkansas Rules of Criminal Procedure or an appeal from a posttrial motion challenging the validity or legality of the sentence, the first and third exceptions do not apply. Therefore, we must analyze this case under the second exception and determine whether Starks's points on appeal are challenging testimony or evidence presented during a sentencing hearing separate from the plea itself.

         Starks's first point on appeal is that the circuit court erred in sentencing him based on an error in the presentence report that was introduced into evidence during the sentencing hearing. The appeal of this issue falls within the second exception to the general rule because Starks's appeal is a challenge to the evidence (the facts stated in the presentence report) presented during his sentencing hearing. Accordingly, we have jurisdiction over the appeal of this issue. Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994) (holding that the appellant's appeal of evidence admitted during the sentencing hearing fell within the second exception and vested the appellate court with jurisdiction).

         Starks argues that the circuit court erred when it sentenced him based on a presentence report that contained an error. He argues that the error in the report resulted in a fundamentally unfair sentence because it caused him to be punished based on conduct for which he was neither charged nor convicted. However, we cannot reach the merits of this issue because Starks did not raise this argument or objection below.[2] At the sentencing hearing, the following colloquy occurred between the court and Starks's counsel:

Court: Have you had a chance, a chance to look this [presentence report] over ...

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