JOSEPH L. NICHOLS APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, OSCEOLA DISTRICT
[NO. 47OCR-17-82] HONORABLE RALPH EDWIN WILSON, JR., JUDGE.
Lane Firm, by: Jonathan T. Lane, for appellant.
Rutledge, Att'y Gen., by: Jason Michael Johnson,
Ass't Att'y Gen., for appellee.
WAYMOND M. BROWN, JUDGE.
Joseph Nichols appeals the revocation of his suspended
imposition of sentence (SIS) by the Mississippi County
Circuit Court for the underlying charge of first-degree
terroristic threatening. He argues on appeal that his
revocation should be reversed because the court erred in
admitting his prior DWI convictions. We affirm.
negotiated a plea of guilty on August 7, 2017, for
terroristic threatening and DWI. He was sentenced to three
years' SIS for terroristic threatening. As a condition of
his SIS, he was ordered "not to commit a criminal
offense punishable by imprisonment," and to "not
drink or possess intoxicating or alcoholic beverages."
The State filed a petition to revoke on May 7, 2018, alleging
that appellant had violated the terms and conditions of his
SIS on May 5, 2018, by committing the offenses of DWI fourth,
having an open container, driving on a suspended driver's
license third, refusal to submit to a chemical test, and
driving left of center.
revocation hearing took place on September 21, 2018. At the
hearing, the State introduced certified copies of
appellant's three prior DWI convictions. Appellant's
attorney objected to the introduction of the convictions,
stating, "I would object in that it appears like it may
be certified. It's certainly not exemplified. I believe
the Rules and the Statutory Authority require
exemplification, not merely certification, in order for it to
be authenticated." When asked what exemplification was,
the attorney responded that it "is a statutory --
it's in the Statutory Code that says it's supposed to
be exemplified, is my understanding." Appellant's
attorney further stated, "Well, I have to have something
to appeal." Appellant subsequently moved for a directed
verdict, contending that the State failed to prove a crime
that could be punishable by imprisonment and arguing that
imprisonment means prison. The court denied the motion. The
court granted the State's revocation petition, and
sentenced appellant to six years' imprisonment. The
sentencing order was filed on September 21, 2018. Appellant
filed a timely notice of appeal on September 26, 2018. This
to Arkansas Code Annotated section 16-93-308(d),
circuit court may revoke a defendant's SIS at any time
prior to the expiration of the period of suspension if a
preponderance of the evidence establishes the defendant
inexcusably failed to comply with a condition of the
suspension. Appellant does not argue that the evidence
was insufficient to support a revocation. Instead, he argues
that the court erred by admitting his prior DWI convictions
into evidence. More specifically, he contends,
The trial court abused its discretion in admitting
State's Exhibits 5, 6, and 7, which are certified records
reflecting Appellant Nichols' prior convictions for
driving while intoxicated. The prior convictions are for
conduct occurring before Mr. Nichols was placed on probation,
served no evidentiary purpose, and their prejudicial nature
far outweighed their probative value.
Here, there was a preponderance of the evidence that Mr.
Nichols was driving while intoxicated as well as driving on a
suspended driver's license on the date of May
5th2018. Jail time is an authorized sentence for
each of these. Accordingly, this evidence standing alone
supports a finding that Mr. Nichols violated a condition of
his suspended sentence.
Admitting proof of prior convictions solely to establish the
events of May 5th constitute a felony rather than
a misdemeanor served no legitimate purpose. Such evidence is
cumulative and unnecessary during the guilt phase. By its
nature, this prejudiced the appellant.
Given that the court cited the felony driving when
intoxicated as a reason justifying a sentence of the maximum
authorized term of six years in the Arkansas Department of
Correction, it cannot be considered harmless. For this reason
this court should reverse and remand for further proceedings.
State contends, and we agree, that appellant's argument
was not raised below and thus is not preserved for review.
Our law is well settled that issues raised for the first time
on appeal, even constitutional ones, will not be considered
because the ...