{ "id": 236190, "name": "Jerry MACKEY v. STATE of Arkansas", "name_abbreviation": "Mackey v. State", "decision_date": "1997-06-23", "docket_number": "CR 97-312", "first_page": "229", "last_page": "234", "citations": [ { "type": "official", "cite": "329 Ark. 229" }, { "type": "parallel", "cite": "947 S.W.2d 359" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "318 Ark. 220", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455702 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/ark/318/0220-01" ] }, { "cite": "313 Ark. 253", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914647 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0253-01" ] }, { "cite": "308 Ark. 507", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904348 ], "weight": 7, "year": 1992, "pin_cites": [ { "page": "510" }, { "page": "820" } ], "opinion_index": 0, "case_paths": [ "/ark/308/0507-01" ] }, { "cite": "270 Ark. 781", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709251 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "785" }, { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/ark/270/0781-01" ] }, { "cite": "322 Ark. 312", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447568 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0312-01" ] }, { "cite": "56 Ark. App. 164", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139331 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/ark-app/56/0164-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-501", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "opinion_index": 0 } ], "analysis": { "cardinality": 498, "char_count": 9409, "ocr_confidence": 0.731, "pagerank": { "raw": 1.0550956928774053e-07, "percentile": 0.5551545669264888 }, "sha256": "8eb71f57a0cafc30c1fce327a8fbc10185b31c008c375411aab3dd2765cd889b", "simhash": "1:a76802666f877778", "word_count": 1542 }, "last_updated": "2023-07-14T20:24:12.305718+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Jerry MACKEY v. STATE of Arkansas" ], "opinions": [ { "text": "Ray Thornton, Justice.\nAppellant consented to a bench trial in the Pulaski County Circuit Court and was convicted of residential burglary. Pursuant to Ark. Code Ann. \u00a7 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\u2019 imprisonment.\nAppellant 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, \u201cessentially relieved trial counsel of the duty to apprise the trial court of deficiencies in the evidence, including missing elements of proof.\u201d Mackey v. State, 56 Ark. App. 164, 167, 939 S.W.2d 851 (1997).\nIn 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.\nWe conduct our review pursuant to Ark. Sup. Ct. R. l-2(f) as though the case had originally been appealed to this court, and we conclude that the trial court\u2019s decision should be affirmed.\nInitially, 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.\nThe court of appeals\u2019 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.\nBy 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 \u201cexceptions to the basic requirement of an objection in the trial court are so rare that they may be reviewed quickly.\u201d We then delineated four exceptions to the contemporaneous-objection rule, none of which are applicable here.\nOur 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.\nAs pointed out by the dissent, there is a fine 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\u2019s 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.\nFactually, 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 \u201cfelony\u201d and \u201chabitual\u201d 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\u2019s own attorney questioned: \u201cMr. Mackey, you\u2019ve got prior convictions for what? Theft by receiving and possession of drug paraphernalia?\u201d Appellant responded, \u201cYes, sir.\u201d 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, \u201cYes,\nBefore 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\u2019s 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, \u201cWhat else?\u201d 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.\nDuring the sentencing phase, appellant\u2019s attorney began calculating his client\u2019s possible sentence and stated:\nThe 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.\nAfter the State agreed that this reduction was accurate, appellant\u2019s attorney continued to figure the appropriate sentence based on his client\u2019s habitual-offender information:\nSo, that\u2019s 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. . .\nAppellant\u2019s attorney requested that the court depart down from the hundred and eight months in prison based on the fact that he was convicted of a property crime, that there was not extensive property damage, that the appellant had obtained rehabilitation, and that no injuries occurred during the crime. The court denied the leniency plea and set sentence at the lowest setting on the sentencing grid.\nAs 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.\nThe 1992 Withers case reiterated this court\u2019s 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\u2019s determination that multiple prior convictions existed which established the defendant\u2019s 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.\nIt 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.\nWe affirm the trial court\u2019s decision.", "type": "majority", "author": "Ray Thornton, Justice." } ], "attorneys": [ "William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Brad Newman, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Jerry MACKEY v. STATE of Arkansas\nCR 97-312\n947 S.W.2d 359\nSupreme Court of Arkansas\nOpinion delivered June 23, 1997\nWilliam R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Brad Newman, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0229-01", "first_page_order": 253, "last_page_order": 258 }