Mackey v. State

Jerry MACKEY v. STATE of Arkansas

CR 97-312                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 23, 1997


1.   Appeal & error -- contemporaneous-objection rule. -- A contemporaneous
     objection must be made to the trial court before the appellate
     court will review an alleged error on appeal.

2.   Appeal & error -- contemporaneous objection necessary to preserve issue
     whether prior convictions should have been considered in bench-trial
     sentencing phase. -- A contemporaneous objection is necessary to
     preserve the issue whether previous convictions should have
     been considered in the sentencing phase at a bench trial.

3.   Appeal & error -- appellant procedurally barred from appealing habitual-
     offender finding. -- While the supreme court does not require a
     directed-verdict motion for sufficiency of the evidence during
     the guilt phase of a bench trial, it does require a bench-
     trial contemporaneous objection to challenge the existence of
     prior convictions to establish habitual-offender status for
     the purpose of sentencing; where appellant made no
     contemporaneous objection challenging the existence of prior
     felonies, the supreme court held that he was procedurally
     barred from appealing the issue of the sufficiency of the
     evidence to support the habitual-offender finding; the supreme
     court affirmed the trial court's decision.

     Petition for Review from the Arkansas Court of Appeals; Court
of Appeals reversed; Trial Court affirmed.
     William R. Simpson, Jr., Public Defender, by:  C. Joseph
Cordi, Jr., Deputy Public Defender, for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.

     Ray Thornton, Justice.
     Appellant consented to a bench trial in the Pulaski County
Circuit Court and was convicted of residential burglary.  Pursuant
to Ark. Code Ann.  5-4-501 (Repl. 1993), the trial court found
that  appellant was an habitual offender with more than one but
less than four previous felony convictions and sentenced him to 108
months' imprisonment.  
     Appellant sought review from the court of appeals where he did
not challenge the sufficiency of the evidence to convict him;
rather, he claimed that there was insufficient evidence to support
the finding that he was an habitual offender and should receive an
enhanced sentence.  In a 4-2 opinion, the court of appeals reversed
and remanded the case for resentencing, asserting that this court
has ruled that a defendant is not required to make a
contemporaneous objection of any kind to preserve any issue in
cases where a bench trial is held.  In its opinion, the court of
appeals stated that the supreme court has, "essentially relieved
trial counsel of the duty to apprise the trial court of
deficiencies in the evidence, including missing elements of proof." 
Mackey v. State, 56 Ark. App. 164, 167, 939 S.W.2d 851 (1997).  
     In its petition for review, the State prays for supreme court
review and contends the court of appeals has misinterpreted our
rulings which are directly on point to this issue.     
     We conduct our review pursuant to Ark. Sup. Ct. R. 1-2(f) as
though the case had originally been appealed to this court, and we
conclude that the trial court's decision should be affirmed.
     Initially, we note that this appeal does not include a
challenge to the sufficiency of the evidence to sustain the
conviction but only seeks to raise the issue whether the sentence
imposed on the appellant as an habitual offender was supported by
appropriate evidence that he had been convicted of multiple prior
felonies as required for sentencing him as an habitual offender.
     The court of appeals' majority opinion relied upon our
decision in Strickland v. State, 322 Ark. 312, 909 S.W.2d 318
(1995), where we held that, at a bench trial, a motion for a
directed verdict for insufficient evidence to sustain a conviction
was not required to preserve the issue on appeal.  Our rationale
for this decision was that in a bench trial, such a contemporaneous
motion was superfluous, since the trial judge was required to
consider the sufficiency of the evidence in determining guilt.   
     By contrast, we have long held that a contemporaneous
objection must be made to the trial court before we will review an
alleged error on appeal.  In Wicks v. State, 270 Ark. 781, 785, 606 S.W.2d 366, 369 (1980), we noted that "exceptions to the basic
requirement of an objection in the trial court are so rare that
they may be reviewed quickly."  We then delineated four exceptions
to the contemporaneous-objection rule, none of which are applicable
here.
     Our decision in Strickland v. State, supra, was limited to the
issue whether, at a bench trial, a directed-verdict motion was
required to preserve for appeal the issue of sufficiency of the
evidence to support a determination of guilt and conviction.  We do
not depart from either of these rules by following Withers v.
State, 308 Ark. 507, 825 S.W.2d 819 (1992), and specifically
requiring that a contemporaneous objection is necessary to preserve
the issue whether previous convictions should have been considered
in the sentencing phase at a bench trial.  
     As pointed out by the dissent, there is a line of cases which
are directly on point.  We find that this case cannot be
distinguished from the facts of Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992).  In Withers, this court ruled that an appellant
convicted at a bench trial failed to make a contemporaneous
objection to the trial court's finding that he had four or more
felony convictions, and that failure to object barred him from
raising the issue on appeal.  The Withers court also noted that not
only did the appellant fail to object to the habitual-offender
finding, but that both the appellant and his own counsel admitted
to his prior record, with his attorney arguing for leniency.  On
direct examination, the appellant admitted he had a record and
testified as to those crimes.  Withers, 308 Ark. at 510, 825 S.W.2d 
at 820.  The supreme court found that it was understandable for the
State to believe, in light of these admissions, that it was
unnecessary to introduce a pen pack into evidence.  Id.
     Factually, this case cannot be distinguished.  In this case,
the felony information charging appellant with residential burglary
included a provision that appellant had been convicted of more than
one but less than four felonies, thereby providing notice that
appellant would be treated as a habitual offender.  Appellant
signed a Waiver of Jury Trial for this burglary felony.  On that
form, the words "felony" and "habitual" were circled and appellant
was put on notice that he could receive a sentence ranging from
five to thirty years in the state penitentiary.  On direct
examination during the guilt phase, appellant's own attorney
questioned:
     Mr. Mackey, you've got prior convictions for what?  Theft
     by receiving and possession of drug paraphernalia?
Appellant responded, "Yes, sir."  Later, on re-cross examination,
appellant was asked if he got in trouble in 1990 and 1993 and
whether he was currently on probation for the later offense. 
Appellant responded, "Yes, sir."  
     Before ending the guilt phase, the State clarified the exact
prior felonies it would use for habitual status, and stated it had
certification for case 93-1657A for possession of drug
paraphernalia.  When the court asked how appellant had pled for
that case, appellant's own attorney conceded that he had also
represented appellant on that previous case and appellant had pled
guilty for that Class C felony.  Continuing on the certification
issue, the trial court inquired, "What else?" and the State said
the other case was 90-72A which resulted in a bench trial on that
theft by receiving charge, a Class C felony.  No contemporaneous
objection was made challenging the existence of these prior
felonies.  
     During the sentencing phase, appellant's attorney began
calculating his client's possible sentence and stated:
     The only mistake we really saw with the presentence is
     that Miss Byrd counted the misdemeanors that were more
     than ten years old.  So, I think the State will agree
     with me that it should be three point two five as opposed
     to a four.
After the State agreed that this reduction was accurate,
appellant's attorney continued to figure the appropriate sentence
based on his client's habitual-offender information:
     So, that's going to make it, if you follow the grid,
     seriousness level six, score of three. Going to make it
     a hundred and eight months in the Arkansas Department of
     Correction...
Appellant's attorney requested the court depart down from the
hundred and eight months in prison based on the fact that he was
convicted of a property crime, there was not extensive property
damage, the appellant had obtained rehabilitation, and no injuries
occurred during the crime.  The court denied the leniency plea and
set sentence at the lowest setting on the sentencing grid.
     As in Withers, not only did appellant fail to object to the
habitual-offender finding, but both appellant and his own counsel
admitted to his prior record, with his attorney arguing for
leniency.  While he did move for a directed verdict on the
sufficiency of the evidence, appellant never questioned the
habitual-offender status from the time the information was filed
until appeal.  In fact, appellant admitted the prior convictions,
and he guided the trial court to the proper length of his own
sentence of 108 months in prison.  
     The 1992 Withers case reiterated this court's endorsement of
the contemporaneous-objection rule in bench trials, at least to the
extent of showing habitual-offender status for sentencing purposes. 
In 1993, we cited Withers in Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993), upholding the rule that a bench-trial
contemporaneous objection must be made in order to challenge a
judge's determination that multiple prior convictions existed which
established the defendant's status as a habitual offender, and that
the issue is waived on appeal absent that objection.  In State v.
Brummett, 318 Ark. 220, 885 S.W.2d 8 (1994), another appeal from a
bench-trial ruling, this court held that the purpose for the
contemporaneous-objection rule is to give the trial court the
opportunity to know the reasons for disagreement with its proposed
action before or at the time that court makes its ruling. 
Brummett, 318 Ark. at 222.   
     It is clear that while we do not require a directed-verdict
motion for sufficiency of the evidence during the guilt phase of a
bench trial, we do require a bench-trial contemporaneous objection
to challenge the existence of prior convictions to establish
habitual-offender status for the purpose of sentencing.  We hold
appellant is procedurally barred from appealing this issue.
     We affirm the trial court's decision.