{ "id": 1904348, "name": "Dewayne WITHERS v. STATE of Arkansas", "name_abbreviation": "Withers v. State", "decision_date": "1992-03-02", "docket_number": "CR 91-226", "first_page": "507", "last_page": "512", "citations": [ { "type": "official", "cite": "308 Ark. 507" }, { "type": "parallel", "cite": "825 S.W.2d 819" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "270 Ark. 781", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709251 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0781-01" ] }, { "cite": "289 Ark. 91", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875433 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0091-01" ] }, { "cite": "295 Ark. 121", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893751 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0121-01" ] }, { "cite": "297 Ark. 324", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891403 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/297/0324-01" ] } ], "analysis": { "cardinality": 483, "char_count": 7985, "ocr_confidence": 0.92, "pagerank": { "raw": 4.013966429587859e-07, "percentile": 0.9063686724592823 }, "sha256": "8c23ffde704070380bad6ce77b281e556dd87caff3deaa446537c8a06beb6f59", "simhash": "1:794cc8b12473cf10", "word_count": 1379 }, "last_updated": "2023-07-14T18:22:40.186541+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Dewayne WITHERS v. STATE of Arkansas" ], "opinions": [ { "text": "Robert L. Brown, Justice.\nOn June 20, 1991, the appellant, Dewayne Withers, was convicted at a bench trial of possession of cocaine with intent to deliver and sentenced to life imprisonment as a habitual offender. The appellant had also been charged with possession of marijuana, but the circuit court merged that charge into the felony conviction at time of sentencing. The appellant now appeals his sentence on the basis that it was improperly enhanced due to lack of evidence of prior convictions and, further, that any conviction for possession of marijuana should be void. The points raised are without merit, and we affirm.\nWe turn first to the appellant\u2019s argument that he was improperly sentenced as a habitual offender. Withers was charged as a multiple offender with four or more felony convictions. Following the finding of guilt on the cocaine charge, this colloquy among the court, defense counsel, and the appellant ensued:\nTHE COURT: The Court finds the defendant guilty. Priors?\nDEFENSE COUNSEL: More than four, your Honor.\nTHE COURT: Mr. Withers, have you got four or more prior felony convictions?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: Did you have an attorney in each of these?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: The Court finds he\u2019s a habitual offender with four or more.\nDEFENSE COUNSEL: Judge, I know the Court\u2019s somewhat limited in its sentencing. That\u2019s one of the reasons \u2014 I knew what the testimony was going to be \u2014 I tried so strongly to advise Dewayne and his mother to take what I considered to be a very good offer, especially a Class Y. He is currently doing a twenty-five year sentence on a Y felony which he will have to do three-quarters of and flatten out. There will be no parole, as is whatever he gets on this one.\nTHE COURT: What\u2019s the range here?\nDEFENSE COUNSEL: Forty to life.\nPROSECUTOR: Forty to life, your Honor.\nTHE COURT: You want another forty or you want life consecutive?\nPROSECUTOR: The State picks life, Judge. This is his third cocaine prior.\nDEFENSE COUNSEL: Your Honor, on the twenty-five that he\u2019s doing, he\u2019s going to do somewhere around fourteen or so years. And he is a young \u2014 I mean he\u2019s only twenty-three. I know he\u2019s made a lot of mistakes. And I\u2019ve represented him before a lot of times. And I have tried very hard to get him to plead guilty this time. I\u2019ve never really had a problem with him before if he did it as far as being straight. But he has contended this one, whatever he gets he gets, but it wasn\u2019t his and he\u2019s just not going to take it.\nI\u2019d ask the Court to consider just giving him forty. That surely is going to take care of him long enough, Judge.\nTHE COURT: It\u2019s tempting. Forty would probably be less time than \u2014 I mean life would probably [be] less time than forty because if I gave him forty I\u2019d stack it and it\u2019s another Class Y. If [I] give him life, it\u2019s life. He\u2019s going to be there until they commute it. So, they\u2019ll just run it concurrently with this. So, whenever they commute the life, that\u2019s what he\u2019s going to have to do. And he chose the lesser of two evils in my judgment but life is life.\nThis colloquy makes it patently clear that not only did the appellant fail to object to the circuit court\u2019s finding that he had four or more felony convictions, but he and his defense counsel also both admitted to the prior record, and his defense counsel then argued for leniency. Based on an earlier statement by the deputy prosecutor at trial, she was prepared to offer a pen pack as evidence of the appellant\u2019s record but understandably believed it to be unnecessary in light of these admissions. Moreover, during the appellant\u2019s case-in-chief, the appellant admitted on direct examination that he had a record and then testified to felony convictions for burglary, theft of property, possession of cocaine, felon in possession of a firearm, and a second possession of cocaine. We further note that, after the trial, the appellant filed a petition to reconsider his life sentence, but in that petition he did not contest the validity of the previous convictions.\nWe have long been resolute in holding that a contemporaneous objection is a prerequisite to our review except in very limited instances that do not apply to the case at bar. See e.g., Smart v. State, 297 Ark. 324, 761 S.W.2d 915 (1988); Hughes v. State, 295 Ark. 121, 746 S.W.2d 557 (1988); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Otherwise, this would give rise toa basic unfairness in that the trial court would be foreclosed from considering the point of error raised on appeal. We are not willing to reverse our oft-stated position on this issue, and we reiterate our endorsement of the contemporaneous objection rule yet again.\nThe appellant cites us to three rules for the proposition that contemporaneous objections are not required to preserve the issue for review where there is prejudice to the appellant:\nThe Supreme Court need only review those matters briefed and argued by the appellant provided that where either a sentence for life imprisonment or death was imposed, the Supreme Court shall review the entire record for errors prejudicial to the right of the appellant.\nArk. R. Crim. P. 36.24.\nWhen the sentence is death or life imprisonment, the Court must review all errors prejudicial to the appellant. Act 333 of 1971; Ark. Stat. Ann. \u00a7 43-2725 (Supp. 1973). To make that review possible the appellant must abstract all objections that were decided adversely to him in the trial court, together with such parts of the record as are needed for an understanding of the objection. The Attorney General will make certain that all objections have been so abstracted and will brief all points argued by the appellant and any other points that appear to him to involve prejudicial error.\nArk. Sup. Ct. R. 11(f) (in part).\nNothing in this rule precludes taking notice of errors affecting substantial rights although they were not brought to the attention of the court.\nArk. R. Evid. 103(d).\nThe appellant misreads these rules. None of them absolves the party at trial from making the appropriate objection as a prerequisite to our review, and we have so held. See, e.g., Fretwell v. State, supra; Wicks v. State, supra. Rule 11 (f) of the Arkansas Supreme Court Rules and Rule 36.24 of the Arkansas Rules of Criminal Procedure both require review of the record for error in life and death cases, but this review presupposes that an objection was made at trial. And, as was noted by this court in Wicks, Ark. R. Evid. 103(d) at best is limited to evidentiary matters and in any case does not impose an affirmative duty on the appellate courts to review such matters for the first time on appeal. Again, there was no objection made by the appellant regarding his criminal record at trial.\nFor his second point, the appellant advances the argument that the circuit court\u2019s pronouncement concerning the misdemeanor charge for marijuana possession was error. The circuit court stated at sentencing that the marijuana charge \u201cmerges into the felony.\u201d Though it is somewhat unclear what the circuit court meant by this, the appellant did not object to the circuit court\u2019s ruling, and he is now foreclosed from raising the issue on appeal under the considerable authority adduced above. We further observe that since the conviction is not a matter of record and no sentence was meted out in connection with the charge, there is no prejudice shown by the appellant resulting from the circuit court\u2019s ruling.\nAn examination of the record has been made in accordance with Ark. Sup. Ct. R. 11 (f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.\nAffirmed.", "type": "majority", "author": "Robert L. Brown, Justice." } ], "attorneys": [ "James P. Clouette, for appellant.", "Winston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Dewayne WITHERS v. STATE of Arkansas\nCR 91-226\n825 S.W.2d 819\nSupreme Court of Arkansas\nOpinion delivered March 2, 1992\nJames P. Clouette, for appellant.\nWinston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0507-01", "first_page_order": 535, "last_page_order": 540 }