{ "id": 6138910, "name": "Brian Keith MISENHEIMER v. STATE of Arkansas", "name_abbreviation": "Misenheimer v. State", "decision_date": "2007-10-24", "docket_number": "CA CR 07-79", "first_page": "189", "last_page": "194", "citations": [ { "type": "official", "cite": "100 Ark. App. 189" }, { "type": "parallel", "cite": "265 S.W.3d 764" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7\u00a7 5-13-201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "296 Ark. 451", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892749 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "454" }, { "page": "555-56" } ], "opinion_index": 0, "case_paths": [ "/ark/296/0451-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-1-110", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "pin_cites": [ { "page": "(a)(5)" }, { "page": "(a)", "parenthetical": "Repl. 2006" } ], "opinion_index": 0 }, { "cite": "351 Ark. 468", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1158915 ], "weight": 11, "year": 2003, "pin_cites": [ { "page": "470-72" }, { "page": "802-03" }, { "page": "477" }, { "page": "806" }, { "page": "478-79" }, { "page": "807" }, { "page": "478" }, { "page": "807" } ], "opinion_index": 0, "case_paths": [ "/ark/351/0468-01" ] }, { "cite": "298 Ark. 20", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889840 ], "weight": 7, "year": 1989, "pin_cites": [ { "page": "24-25" }, { "page": "411" }, { "page": "25-26" }, { "page": "412-13" } ], "opinion_index": 0, "case_paths": [ "/ark/298/0020-01" ] }, { "cite": "201 S.W.3d 900", "category": "reporters:state_regional", "reporter": "S.W.3d", "year": 2005, "pin_cites": [ { "page": "907" } ], "opinion_index": 0 }, { "cite": "360 Ark. 388", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5459474 ], "year": 2005, "pin_cites": [ { "page": "400-01" } ], "opinion_index": 0, "case_paths": [ "/ark/360/0388-01" ] }, { "cite": "94 Ark. App. 252", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140627 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "257" }, { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/ark-app/94/0252-01" ] }, { "cite": "86 Ark. App. 154", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137749, 5404879 ], "weight": 8, "year": 2004, "pin_cites": [ { "page": "157" }, { "page": "496" }, { "page": "158" }, { "page": "497" }, { "page": "157" }, { "page": "496" }, { "page": "160" }, { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/ark-app/86/0154-01", "/ark/357/0154-01" ] }, { "cite": "357 Ark. 105", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5405490 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "118" }, { "page": "822" } ], "opinion_index": 0, "case_paths": [ "/ark/357/0105-01" ] }, { "cite": "354 Ark. 76", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 36092 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "84" }, { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/ark/354/0076-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-501", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 8, "year": 2007, "pin_cites": [ { "page": "(b)(l)" }, { "parenthetical": "b" }, { "page": "(d)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 566, "char_count": 10183, "ocr_confidence": 0.811, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.34745268932667506 }, "sha256": "976e8bbbced8b6e76d23c71f88081ca941b43f76fb17d7f439c2999e5b759596", "simhash": "1:20dd3df6c5daf606", "word_count": 1677 }, "last_updated": "2023-07-14T22:52:18.034517+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Baker and Miller, JJ., agree." ], "parties": [ "Brian Keith MISENHEIMER v. STATE of Arkansas" ], "opinions": [ { "text": "D.p. Marshall Jr., Judge.\nBrian Misenheimer stole a Ford F-350 dually pick-up truck from the parking lot of an Exxon station in Pulaski County. Two days later, while he was high on methamphetamine, Misenheimer drove the truck to Walgreens. When he left the store, a police car was partially blocking the parking-lot exit. Misenheimer drove the truck over the front-end of the police car and led police officers on a high-speed chase through Little Rock, during which one officer\u2019s car ran into a retaining wall. Misenheimer eventually drove to the airport, where he knocked down a gate and drove onto the airport grounds. The chase then continued into Saline County. Misenheimer was apprehended there after a head-on collision that severely injured a state trooper.\nMisenheimer was charged with various felonies in both Pulaski County and Saline County. Fie first pleaded guilty to five felony charges in Pulaski County and was sentenced by the circuit court there. The prosecutor in Saline County then amended his information and sought to sentence Misenheimer as an habitual offender under Ark. Code Ann. \u00a7 5-4-501 (Supp. 2007). Misen-heimer pleaded guilty to the Saline County charges, while objecting to the application of the sentencing enhancement. The Saline County circuit court rejected Misenheimer\u2019s arguments. He was sentenced as an habitual offender to 125 years in prison to be served concurrently with his Pulaski County sentence. Misenhe-imer now appeals his sentence. We review this question of statutory interpretation de novo. State v. Sola, 354 Ark. 76, 84, 118 S.W.3d 95, 99 (2003).\nI.\nMisenheimer makes three arguments why Ark. Code Ann. \u00a7 5-4-501 should not apply to what he describes as his continuous criminal episode stretching across two counties. Two of Misenhe-imer\u2019s arguments fail at the threshold.\nFirst, we have doubts about whether he preserved his due-process point in the circuit court. He had two sentences about it in his trial brief, and did not mention it during his oral argument to the circuit court. Compare Standridge v. State, 357 Ark. 105, 118, 161 S.W.3d 815, 822 (2004). Even assuming that the point is preserved, we affirm on it. Misenheimer had more than two months\u2019 notice \u2014 from the amended information \u2014 of the State\u2019s intention to seek the enhancement before he pleaded guilty in Saline County. And for the reasons explained later, we discern no fundamental unfairness in the application of the enhancement statute here.\nSecond, Misenheimer cannot be heard to complain in this appeal that the Pulaski County circuit court did not advise him before his guilty plea that his conviction might subject him to an enhanced sentence on the pending Saline County charges. Misen-heimer was represented by counsel in both counties. He chose not to appeal his conviction in Pulaski County. He cannot belatedly assert error in his Pulaski County plea in this Saline County case.\nII.\nComing to the hub of the case, Misenheimer argues that he is not an habitual criminal in the ordinary sense of the word \u201chabitual.\u201d He committed, he maintains, one continuous series of connected crimes, and thus the circuit court should not have enhanced his sentence. The purpose of Ark. Code Ann. \u00a7 5-4-501 is to punish repeat offenders severely. Original Commentary to Ark. Code Ann. \u00a7 5-4-501 (Repl. 1995). We must give the words of Ark. Code Ann. \u00a7 5-4-501 their ordinary meaning. Benson v. State, 86 Ark. App. 154, 157, 164 S.W.3d 495, 496 (2004). When applying a criminal statute, we must also follow the rule of lenity: we strictly construe the statute and resolve any doubt about its meaning in Misenheimer\u2019s favor. Boveia v. State, 94 Ark. App. 252, 257, 228 S.W.3d 550, 554 (2006). Under the governing statute and precedent, we conclude that \u00a7 5-4-501 (b) applies to the convictions arising from Misenheimer\u2019s two-county, multi-act episode.\nMisenheimer first argues from the statute\u2019s title: \u201c\u00a7 5-4-501 Habitual Offenders \u2014 Sentencing for felony [.]\u201d We agree that the title ill fits what happened here. But the title does not control, as our cases make plain. Baker Refrigeration Systems, Inc. v. Weiss, 360 Ark. 388, 400-01, 201 S.W.3d 900, 907 (2005). The statute\u2019s words control. The introductory section states: \u201cA defendant meeting the following criteria may be sentenced [to an enhanced penalty].\u201d Ark. Code Ann. \u00a7 5-4-501(b)(l). The criteria applicable to Misenheimer are:\n(A) A defendant who:\n(i) Is convicted of a felony other than a felony enumerated in subsections (c) and (d) of this section committed after June 30, 1993; and\n(ii) Has previously been convicted of four (4) or more felonies or who has been found guilty of four (4) or more felonies;\n(C) A defendant who:\n(i) Is convicted of any felony enumerated in subsection (d) of this section committed after June 30, 1997; and\n(ii) Has previously been convicted of four (4) or more felonies not enumerated in subsection (d) of this section or who has been found guilty of four (4) or more felonies not enumerated in subsection (d) of this section.\nArk. Code Ann. \u00a7 5-4-501 (b)(1)(A)(i)-(ii) & (C)(i)-(ii).\nThis statute is unambiguous. Cf. Benson, 86 Ark. App. at 158, 164 S.W.3d at 497 (2004) (so holding as to Ark. Code Ann. \u00a7 5-4-501(d)). Thus we have no need to resort to the rules of statutory interpretation. 86 Ark. App. at 157, 164 S.W.3d at 496. And Misenheimer met the statutory criteria: he was convicted in Saline County of first-degree battery \u2014 a listed felony \u2014 after June 30, 1997, and theft-by-receiving, fleeing, and criminal mischief \u2014 non-listed felonies \u2014 after June 30, 1993. He had \u201cpreviously been convicted\u201d of four or more non-listed felonies in Pulaski County. Because Misenheimer\u2019s convictions satisfied the criteria, the statute applied to him even though the statute\u2019s title describes a class of persons that does not seem to include him.\nOur decision is guided by Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989) and Smith v. State, 351 Ark. 468, 95 S.W.3d 801 (2003), where our supreme court addressed similar issues. Misenheimer argues that Tackett governs his situation. We are persuaded, however, that Smith is more in point.\nTackett\u2019s vehicle struck another vehicle, causing it to crash. Tackett, 298 Ark. at 24-25, 766 S.W.2d at 411. One passenger died instantly. Tackett was charged and convicted of manslaughter for this death and of leaving the scene of an accident. After lingering in a coma, another passenger died several years later. Tackett was then charged with a second count of manslaughter. Our supreme court rightly rejected the State\u2019s attempt to apply the habitual-offender statute during the prosecution for the second death because all the crimes arose out of Tackett\u2019s single act of recklessly crashing his vehicle. 298 Ark. at 25-26, 766 S.W.2d at 412-13. The court held that \u201cthere is nothing habitual about the commission of a single criminal act resulting in multiple charges and convictions.\u201d Ibid.\nIn Smith, our supreme court distinguished Tackett and upheld a \u00a7 5-4-501 enhancement for multiple convictions arising from a crime spree. Smith committed an aggravated robbery in Desha County, then drove to Drew County, where he committed kidnapping, rape, and other felonies. 351 Ark. at 470-72, 95 S.W.3d at 802-03. He was convicted of the Drew County crimes first. He was then convicted of the robbery in Desha County and was sentenced there as an habitual offender. Ibid. Smith appealed, cited Tackett, and argued that \u201cbecause these \u2018prior\u2019 convictions arose out of the same course of conduct as the aggravated robbery, . . . the Drew County convictions could not be used to enhance his sentence.\u201d Smith, 351 Ark. at 477, 95 S.W.3d at 806. Our supreme court rejected this argument. The court held that the circuit court did not err in sentencing Smith as an habitual offender because \u201cSmith\u2019s multiple criminal acts were not a \u2018continuing course of conduct,\u2019 nor did they arise out of the same transaction.\u201d 351 Ark. at 478-79, 95 S.W.3d at 807 (quoting Ark. Code Ann. \u00a7 5-1-110(a)(5)).\nSmith, not Tackett, controls here. First, two days separated Misenheimer\u2019s theft of the pick-up truck and his crimes during the chase from Walgreens. Second, though Misenheimer\u2019s acts on the day of the chase may have been a continuous series of crimes, they were not \u201ca continuing course of conduct.\u201d That phrase is a statutory term of art. Ark. Code Ann. \u00a7 5-1-110(a) (5) (Repl. 2006). The crimes to which it applies are self-defined as continuing offenses; therefore, a person may not be convicted of more than one offense even though he commits what seem like multiple criminal acts. Smith v. State, 296 Ark. 451, 454, 757 S.W.2d 554, 555-56 (1988). By statute, Misenheimer\u2019s crimes are not defined as continuing crimes. Ark. Code Ann. \u00a7\u00a7 5-13-201, 5-36-106, 5-38-204 (Repl. 2006) and 5-54-125 (Repl. 2005). Finally, unlike in Tackett, we do not face a single act that resulted in two crimes.\nLike in Smith, Misenheimer\u2019s crimes involved multiple acts; his crimes harmed different people; and his crimes occurred at different locations in different counties. His theft, moreover, occurred two days before his other crimes. That all but one of Misenheimer\u2019s crimes arose from a continuous series of events is not dispositive. The determining factor is the multiplicity of acts, victims, and locations. Smith, 351 Ark. at 478, 95 S.W.3d at 807. We are bound to follow Smith, and we do so. The Saline County circuit court therefore made no error in sentencing Misenheimer as an habitual offender.\nAffirmed.\nBaker and Miller, JJ., agree.\nThis court has also called into question the continued viability of Tackett in light of a post-decision amendment to the statute. Benson, 86 Ark. App. at 160, 164 S.W.3d at 498 (2004). Because that amendment changed part of \u00a7 5-4-501 that is not involved in this case, we do not rest our application of Tackett on the statutory change.", "type": "majority", "author": "D.p. Marshall Jr., Judge." } ], "attorneys": [ "Dustin Daniel Dyer, for appellant.", "Dustin McDaniel, Att\u2019y Gen., by: Leaann J. Irvin, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Brian Keith MISENHEIMER v. STATE of Arkansas\nCA CR 07-79\n265 S.W.3d 764\nCourt of Appeals of Arkansas\nOpinion delivered October 24, 2007\nDustin Daniel Dyer, for appellant.\nDustin McDaniel, Att\u2019y Gen., by: Leaann J. Irvin, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0189-01", "first_page_order": 217, "last_page_order": 222 }