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View Case Details
 
DONALD BROWN, APPELLANT
vs.
STATE OF ARKANSAS, APPELLEE
 
Case:
No. CACR97-300
 
Location:
COURT OF APPEALS OF ARKANSAS, DIVISION TWO
 
Date:
January 7, 1998, Filed
 
Attorneys:
BEN BELAND, FORT SMITH.
BRAD NEWMAN, ASST. AG.
 
Court:
D. FRANKLIN AREY, III, Judge. Jennings and Stroud, JJ., agree.
 
Author:
The Hon. Justice D. Franklin Arey, III
 

Appellant, Donald Brown, brings this appeal from the Sebastian County Circuit Court's revocation of his suspended sentences in two separate cases. He argues that the sentence imposed in one case is illegal on its face because he previously served a set term of imprisonment in the case and there was no remaining time suspended. He also argues that he was denied the right to confront a witness at the revocation hearing, and that the trial court erred in allowing the results of a warrantless search of his apartment into evidence. We agree that the sentence of seven months in the Arkansas Department of Correction, imposed in case number CR-90-245, is illegal on its face. However, we affirm the trial court on appellant's other two points. We therefore affirm the trial court's decision as modified herein.

Case number CR-90-245 commenced against appellant when an information was filed on April 5, 1990, charging him with delivery of marijuana. Appellant pled guilty to this charge and was sentenced on September 19, 1990, to ten years in the Arkansas Department of Correction with seven years suspended. Subsequently, the State filed a petition to revoke, alleging that appellant committed the offense of furnishing a prohibited article. Appellant entered a nolo contender plea statement on July 8, 1991, and was thereupon sentenced to six years in the Arkansas Department of Correction with five and one-half years suspended.

On June 10, 1992, an information was filed in case number CR-92-467, charging appellant with robbery. Appellant entered a nolo contender plea statement; he received a five year suspended sentence and was required to pay a fine and court costs.

A petition to revoke the suspended sentences in both cases was filed on September 17, 1992. This petition was grounded in allegations that appellant committed the offenses of possession of marijuana, possession of drug paraphernalia, and loitering. After a hearing, the court left in effect the suspended sentences previously imposed, with an additional ninety days in the Sebastian County Adult Detention Center with thirty days suspended.

The State filed another petition to revoke the suspended sentences in both cases on January 25, 1994. It was alleged that appellant committed the offenses of possession of cocaine with intent to deliver and felon in possession of a firearm. On March 2, 1994, after a hearing, the court found that appellant violated the terms and conditions of his suspended sentences, and sentenced appellant to serve two years in the Arkansas Department of Correction in case number CR-90-245 and to serve fifteen years in the Arkansas Department of Correction with ten years suspended in case number CR-92-467.

The petition to revoke at issue was filed on May 13, 1996. The State sought to revoke suspended sentences in both cases; it alleged that appellant committed the offenses of possession of marijuana and possession of drug paraphernalia. Appellant contested these charges, and a hearing was held. Because appellant does not challenge the sufficiency of the evidence against him, the testimony at the hearing on the petition to revoke may be summarized here.

Detective Charles Kirk testified that, in the course of investigating suspected drug dealers, it was determined that those suspects were temporarily staying with appellant, and that more drugs might be found in appellant's apartment. Appellant's parole officer, Pierre Raby, was provided with this information by Detective Kirk. They decided to travel to appellant's apartment.

When they arrived, appellant was not present. Officer Raby confirmed that a particular apartment was indeed appellant's, and the apartment was entered. Officer Raby found a small quantity of marijuana prior to appellant's arrival. However, Detective Kirk testified that appellant was present for most of the search. Plastic baggies containing a small amount of green vegetable substance were found, in addition to rolling papers and other paraphernalia. Detective Kirk was the only witness to testify concerning the search; Officer Raby did not testify.

Dale Owens, an employee of the Arkansas Department of Community Service, Parole Department, testified that he tested appellant for drugs the day after he was arrested. Appellant tested positive for marijuana and cocaine. In seeking revocation, the prosecutor noted that appellant tested positive for marijuana, in addition to having marijuana in his apartment.

The appellant was found to have violated the terms and conditions of his suspended sentences. The trial court sentenced appellant to seven months in the Arkansas Department of Correction in case number CR-90-245 and to five years in case number CR-92-467.

Appellant first argues that the sentence in case number CR-90-245 is illegal on its face. He notes the March 2, 1994 sentence of two years, with no time suspended. He argues that his sentence was satisfied and completed on March 2, 1996, at the expiration of this two year sentence, so that the seven months sentence was illegal on its face since he had no time left to serve.

The State requests that we affirm, observing that appellant offers no legal authority in support of his argument. We do not consider arguments unsupported by convincing authority, unless it is apparent without further research that they are well taken. See McClendon v. State, 316 Ark. 688, 875 S.W.2d 55 (1994). In this instance, we believe appellant's argument is well taken without further research.

Generally, if a defendant serves an imposed sentence, a trial court cannot sentence that defendant to serve additional time in prison. See Gautreaux v. State, 22 Ark. App. 130, 736 S.W.2d 23 (1987).

Under our criminal code, a sentence is imposed when the court pronounces a fixed term of imprisonment as opposed to simply specifying a definite period of probation. According to [Ark. Code Ann. SEC. 16-93-402 (Supp. 1995)], if sentence is imposed, then the probationer can only be required to serve the remainder of the time imposed. Gautreaux, 22 Ark. App. at 131, 736 S.W.2d at 24; see Lyons v. State, 35 Ark. App. 29, 813 S.W.2d 262 (1991). Here, in March of 1994, appellant was sentenced to serve two years in case number CR-90-245; no time was suspended. The trial court could not therefore sentence appellant to serve additional time in prison; the seven month sentence is therefore illegal.

We are not required to dismiss the State's petition to revoke. "Where an error has nothing to do with the issue of guilt or innocence and relates only to punishment, it may be corrected in lieu of reversing and remanding." Bangs v. State, 310 Ark. 235, 241, 835 S.W.2d 294, 297 (1992). Appellant's challenge does not go to his guilt or innocence; he merely challenges the sentence in one of the two cases. We therefore exercise our authority to modify the trial court's sentence by vacating the sentence of seven months in the Arkansas Department of Correction in case number CR-90-245, and affirming the sentence to five years in the Arkansas Department of Correction in case number CR-92-467.

For his second point on appeal, appellant argues that he was denied his right to confront Officer Raby at trial. Detective Kirk testified to the search of appellant's apartment, and to the discoveries made by Officer Raby. Officer Raby was not present at trial; appellant objected to any testimony by Detective Kirk concerning Officer Raby's discoveries. This objection was overruled.

While the rules of evidence are not strictly applicable in revocation proceedings, the right to confront witnesses is. See Jones v. State, 31 Ark. App. 23, 786 S.W.2d 851 (1990).

In a probation revocation proceeding the trial court must balance the probationer's right to confront witnesses against grounds asserted by the State for not requiring confrontation. First, the court should assess the explanation the State offers of why confrontation is undesirable or impractical. A second factor that must be considered, and one that has been focused on by a number of courts, is the reliability of the evidence which the government offers in place of live testimony.

Goforth v. State, 27 Ark. App. 150, 152, 767 S.W.2d 537, 538 (1989). As appellant argues, the record does not indicate that the trial court followed the procedure outlined in Goforth.

While the trial court's admission of the testimony without following the procedure established by Goforth constitutes error, we conclude that the error was harmless under the circumstances. See Jones, 31 Ark. App. at 26, 786 S.W.2d at 852-53. Relying on Delaware v. Van Arsdall, 475 U.S. 673, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986), we observed in Jones that denial of the right to confront a witness may be harmless error in a particular case depending upon a host of factors, including the following: (1) the importance of the witness' testimony in the prosecution's case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution's case. See Jones, 31 Ark. App. at 26, 786 S.W.2d at 853 (citing Van Arsdall, 475 U.S. at 684).

In this case, Detective Kirk testified as to what he personally observed in the search. His testimony indicates that a quantity of marijuana and certain paraphernalia were recovered in appellant's apartment. His personal observations lend strength to the prosecution's case; Officer Raby's testimony would have been cumulative. In this instance, the denial of appellant's right to confront Officer Raby is harmless error.

In the alternative, appellant failed to demonstrate prejudice. See Fitzpatrick v. State, 7 Ark. App. 246, 647 S.W.2d 480 (1983). One of appellant's terms of suspension included not using controlled substances. Dale Owens testified that appellant tested positive for marijuana. We do not see how cross examination of Officer Raby would have negated this basis for revoking appellant's suspended sentence.

For his final point on appeal, appellant asserts that the trial court erred in allowing into evidence the testimony and results of a warrantless search of his residence. The State correctly notes that this contention fails because the exclusionary rule does not apply to revocation proceedings. See Jackson v. State, 34 Ark. App. 4, 804 S.W.2d 735 (1991); McGhee v. State, 25 Ark. App. 132, 752 S.W.2d 303 (1988). It is true that dicta in prior decisions of this court and our supreme court suggests that there may be exceptions to this general rule; however, even if this is the law, appellant has not demonstrated some exception justifying application of the exclusionary rule. Therefore, we adhere to the general rule that the exclusionary rule is inapplicable in probation revocation proceedings. See McGhee, 25 Ark. App. At 134, 752 S.W.2d at 304-305.

Affirmed as modified by vacating appellant's sentence of seven months in the Arkansas Department of Correction in case number CR90-245.

Jennings and Stroud, JJ., agree.