Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Montgomery v. State

Court of Appeals of Arkansas, Division IV

September 18, 2019

RODERICK MONTGOMERY APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT [NO. 02CR-17-132] HONORABLE SAM POPE, JUDGE AFFIRMED

          Ben Motal, for appellant.

          Leslie Rutledge, Att'y Gen., by: Michael A. Hylden, Ass't Att'y Gen., for appellee.

          RITA W. GRUBER, CHIEF JUDGE

         This is a companion case to Montgomery v. State, 2019 Ark.App. 377 (case No. CR-18-508), also handed down today. Both cases have returned to us after rebriefing. See Montgomery v. State, 2019 Ark.App. 127; Montgomery v. State, 2019 Ark.App. 128. Roderick Montgomery pleaded guilty to four crimes in case No. CR-18-508 for events that occurred in Drew County and pleaded guilty to three crimes in this case for events that occurred in Ashley County. Both counties are located within the Tenth Judicial District. With appellant's consent, the court held one sentencing hearing for all seven convictions. He brings four points on appeal alleging errors in the sentencing hearing.[1] We affirm his convictions.

         Appellant pleaded guilty in the Ashley County Circuit Court to two counts of delivery of methamphetamine, Class C felonies, and one count of delivery of methamphetamine, a Class B felony. After conducting the sentencing hearing before a jury, the court entered a sentencing order in accordance with the jury's verdict, sentencing appellant to three years' imprisonment on each of the Class C felony-methamphetamine convictions and ten years' imprisonment on the Class B felony-methamphetamine conviction, all to run consecutively to each other.

         The convictions in the two cases arose out of an undercover investigation in which officer Jason Akers, an agent with the Tenth Judicial District Drug Task Force, arranged various drug buys from appellant during June 2017 in Ashley and Drew Counties. These purchases were arranged though calls and text messages between Officer Akers's cell phone and a cell phone used by appellant. The investigation resulted in his being charged in Drew County with five counts: (1) delivery of methamphetamine, a Class B felony; (2) possession of a defaced firearm, a Class D felony; (3) simultaneous possession of drugs and firearms, a Class Y felony; (4) possession of a firearm by a felon while in the commission of a new offense, a Class B felony; and (5) use of a communication device in the commission of a drug offense, a Class C felony. He was charged with seven counts in Ashley County: (1) two counts of delivery of methamphetamine, a Class C felony; (2) two counts of delivery of marijuana, a misdemeanor; (3) simultaneous possession of drugs and firearms, a Class Y felony; (4) delivery of methamphetamine, a Class B felony; and (5) possession of a firearm by a felon, a Class D felony.

         On March 7, 2018, appellant entered into a plea agreement with the State pursuant to which he agreed to plead guilty to seven of the combined twelve charges. In Drew County, he pleaded guilty to delivery of methamphetamine, possession of a defaced firearm, possession of a firearm by a felon while in the commission of a new offense, and use of a communication device. The State removed the enhancement on the methamphetamine charge and nolle prossed the simultaneous-possession charge. For the Ashley County charges, appellant pleaded guilty to the three charges of delivery of methamphetamine, and the State agreed to remove the enhancements on those charges and nolle prossed the two delivery-of-marijuana charges, the simultaneous-possession charge, and the felon-in-possession charge. With appellant's consent, the court then proceeded to hold one sentencing hearing before a jury on all seven convictions.

         At the sentencing hearing, two officers involved in the investigation and an employee from the Arkansas State Crime Laboratory testified. Appellant, his mother, and his grandmother also testified. The jury recommended a total sentence on all seven convictions of forty-seven years out of a total possible combined sentence of ninety-six years. Appellant did not objection to the sentences and filed no posttrial motions.

         He has filed an appeal in both cases. The abstracts and arguments in both cases are the same. The difference between the briefs is that the statements of the case refer to the different convictions for which appellant pleaded guilty in the different counties. Here, in the Ashley County case, appellant pleaded guilty to, and was convicted of, two counts of delivery of methamphetamine, Class C felonies, and one count of delivery of methamphetamine, a Class B felony.

         I. State Breached Plea Agreement by Alluding to Additional Crimes

         For his first point on appeal, appellant contends that the State breached his plea agreement by alluding to additional crimes in closing argument at the sentencing hearing. Specifically, appellant argues that the prosecutor implied that appellant had sold drugs more than five times and committed more crimes than he had been charged with. We do not reach the merits of his arguments because the issue is not preserved for our review. We will not review any alleged error in the State's closing argument absent a contemporaneous objection at trial. Lard v. State, 2014 Ark. 1, at 26, 431 S.W.3d 249, 268. Although appellant did object during the closing argument to the prosecutor's statements about the amount of methamphetamine appellant had been convicted of delivering, this objection occurred in the record over two pages after the allegedly improper statements and was directed not at the statements appellant now argues were improper but at specific calculations of the amount of methamphetamine sold. Thus, appellant cannot now challenge the statements on appeal. Akram v. State, 2018 Ark.App. 504, at 7–8, 560 S.W.3d 509, 514.

         We also reject appellant's unsupported contention that the statements "so fundamentally altered the proceeding" that they warrant relief under Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Our supreme court has recognized four exceptions to the basic requirement of an objection in the circuit court. Id. at 785–87, 606 S.W.2d at 369–70. Two of the exceptions occur in death-penalty cases and so are not applicable here. Id. at 785–86, 606 S.W.2d at 369. The third exception occurs when an error is so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury correctly. Anderson v. State, 353 Ark. 384, 395, 108 S.W.3d 592, 599 (2003). With respect to this exception, the Wicks court cautioned that an appellant "cannot predicate error upon the failure of the court to make a ruling that he did not at the time ask the court to make, unless the remarks were so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury not to consider the same." Wicks, 270 Ark. at 786, 606 S.W.2d at 370. That is not the case here. Finally, the Wicks court noted a fourth possible exception of "errors affecting substantial rights, although they were not brought to the attention of the trial court." Anderson, 353 Ark. at 395, 108 S.W.3d at 599. This exception does not, however, impose an affirmative duty and at most applies only to a ruling that admits or excludes evidence. Buckley v. State, 349 Ark. 53, 66, 76 S.W.3d 825, 833 (2002). This appeal is from a sentencing hearing, and the challenged statements were not evidence but arguments in closing. Case law is clear that these are narrow exceptions to be rarely applied. Anderson, 353 Ark. at 398, 108 S.W.3d at 600. We hold that this is not one of the rare exceptions to which Wicks referred.

         II. Circuit Court Abused its Discretion in Admitting ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.