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 ...