APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO.
60CR-15-3339] HONORABLE LEON JOHNSON, JUDGE
William R. Simpson, Jr., Public Defender, by: Clint Miller,
Deputy Public Defender, for appellant.
Leslie
Rutledge, Att'y Gen., by: Chris R. Warthen, Ass't
Att'y Gen., for appellee.
RITA
W. GRUBER, CHIEF JUDGE
On
October 15, 2015, appellant Adam Kleier was charged in the
Pulaski County Circuit Court with Class A felony arson. The
felony information alleged that appellant started a fire on
September 17, 2015, with the purpose of damaging a motel,
which caused damages greater than $10, 000 but less than
$100, 000. The information also alleged that appellant was a
habitual offender having committed more than one but less
than four felonies. The State filed an amended information on
October 16, 2017, which alleged that appellant was a habitual
offender with four or more prior felony convictions.
Following an April 2018 trial, a jury found appellant guilty
of Class A felony arson and sentenced him as a habitual
offender with four or more prior felony convictions to serve
forty-eight years' imprisonment. For his sole point on
appeal, appellant contends that the circuit court abused its
discretion in finding that the State's exhibits 14 and 15
were documentary proof that appellant had Class C felony
convictions from Missouri for offenses punishable by a
sentence of imprisonment in excess of one year as authorized
by Missouri law. We affirm.
Arkansas
Code Annotated section 5-4-502 provides that for
habitual-offender sentencing under Arkansas Code Annotated
section 5-4-501, the circuit court shall hear evidence of a
defendant's prior felony convictions, determine the
number of convictions, and instruct the jury as to the number
of prior felony convictions along with the statutory
sentencing range. A conviction from another jurisdiction
"constitutes a previous conviction or finding of guilt
of a felony if a sentence of death or of imprisonment for a
term in excess of one (1) year was authorized under a law of
the other jurisdiction." Ark. Code Ann. § 5-4-503
(Repl. 2013). Proof of a foreign law is not a fact that must
be proved at trial. See, e.g., Greene v.
State, 335 Ark. 1, 977 S.W.2d 192 (1998). Further,
Arkansas Code Annotated section 16-40-104 (Repl. 1999)
provides that "[t]he courts of this state shall take
judicial knowledge of the laws of other states."
The
State bears the burden of proving a defendant's prior
convictions for purposes of the habitual-offender statute.
See Willliams v. State, 304 Ark. 279, 801 S.W.2d 296
(1990). A prior felony may be proved by any evidence that
satisfies the circuit court beyond a reasonable doubt that
the defendant was convicted or found guilty of the prior
felony. Ark. Code Ann. 5-4-504(a) (Repl. 2013). A certified
copy of the prior conviction is sufficient to support a
finding of a prior conviction. Ark. Code. Ann. §
5-4-504(b)(1).
During
the sentencing phase, appellant's counsel objected to the
admission of State's exhibits 14 and 15-both certified
copies of Class C felony convictions from Missouri-on the
basis that it could not be established from the exhibits
themselves that the authorized punishment range was in excess
of one year. Exhibit 14 was a certified copy of a 1998
conviction for stealing a motor vehicle for which appellant
was sentenced to twelve months' incarceration in a county
jail, and exhibit 15 was a certified copy of a 1998
conviction for second-degree assault for which he was
sentenced to eight months' incarceration in a county
jail. The State responded that it provided the circuit
court's law clerk with "RS 558.011," a Missouri
statute providing the ranges of punishment for the classes of
felonies and that the statute authorizes a sentence of up to
seven years for a Class C felony. The circuit court overruled
the objection, admitted both exhibits, and instructed the
jury that appellant had been previously convicted of four or
more felonies.
The
argument appellant raises on appeal was addressed in
Cherry v. State, 302 Ark. 462, 791 S.W.2d 354
(1990). Cherry, who was convicted of first-degree murder,
argued on appeal that a prior Missouri conviction should not
have been used against him during sentencing because
"the record of conviction did not show it carried a
sentence in excess of one year, as required by Ark. Code Ann.
§ 5-4-503 (1987)." Id. at 470-71, 791
S.W.2d at 358. There, the State offered a certified copy of a
conviction from Missouri to prove appellant's status as a
habitual offender. The proof offered noted that appellant
pleaded guilty to "Forgery (Class C) (3 counts)."
Id. at 471, 791 S.W.2d at 359. In affirming the
circuit court, the supreme court took judicial notice that
under Missouri law, forgery is a Class C felony and that a
Class C felony is punishable by a term not to exceed seven
years under Mo. Ann. Stat. § 558.011(1)(3) (Vernon
1979). The supreme court held that the convictions were
properly considered.
The
facts presented in this case, in contrast to Cherry,
demonstrate that the Missouri sentencing statute was cited by
the State to the circuit court. The State cited Mo. Rev.
Stat. § 558.011, told the court that a Class C felony
authorized a sentence of up to seven years imprisonment, and
informed the court it had given a copy of the statute to the
court's law clerk.[1] Appellant does not assert that Mo. Ann.
Stat. § 558.011 does not authorize a sentence in excess
of one year for a Class C felony, only that the possible
range of sentencing is not apparent from the face of the
certified copies of the convictions. The circuit court was
presented with the Missouri law and admitted the two Missouri
convictions. Arkansas Code Annotated section 16-40-104
provides that "[t]he courts of this state shall take
judicial knowledge of the laws of other states."
Therefore, we conclude that the challenged convictions were
properly admitted.
Appellant
further contends that this court cannot take judicial notice
of the Missouri law on appeal, arguing that the supreme court
in Greene v. State, 335 Ark. 1, 977 S.W.2d 192
(1998), "impliedly overruled" its holding in
Cherry that it could take judicial notice of the
Missouri sentencing statute on appeal. Because the Missouri
sentencing statute was raised in the circuit court, we need
not address this argument.
Finally,
appellant suggests that the State failed to give proper
notice that it intended to rely on foreign law as required by
Ark. R. Civ. P. 44.1. This argument was not raised below, and
we do not address arguments raised for the first time on
appeal. Davis v. State, 2018 Ark.App. 450, at 4, 558
S.W.3d 897, 899.
Affirmed.
Switzer and ...