remanding for resentencing due to the jury’s consideration of a sentencing range authorized by a habitual-offender statute, held to be repealed by implication, when a properly instructed jury might have imposed a lesser minimum sentence under the applicable law
How later courts described this case
- remanding for resentencing due to the jury’s consideration of a sentencing range authorized by a habitual-offender statute, held to be repealed by implication, when a properly instructed jury might have imposed a lesser minimum sentence under the applicable law
- “Because sentencing is entirely a matter of statute, the circuit court only has the authority to impose a particular sentence when it complies with the applicable statute.”
Written by the judges who cited it.
The opinion
KAREN R. BAKER, Justice, concurring in part and dissenting in part.
I concur with the majority’s disposition of the first and second issues raised by Glaze in his appeal. However, because Glaze’s sentence is not illegal, I would affirm as to the third issue as well.
This court has held that where the law does not authorize the particular sentence pronounced by the trial court, the sentence is unauthorized and illegal. Donaldson v. State, 370 Ark. 3 , 257 S.W.3d 74 (2007) (holding that the sentence entered by the circuit court was illegal because the court had no authority to impose a sentence that exceeded the punishment fixed by the jury). The majority cites to three cases in support of its conclusion that Glaze’s 11f,sentence is illegal: Cross v. State, 2009 Ark. 597 , 357 S.W.3d 895 ; Cantrell v. State, 2009 Ark. 456 , 343 S.W.3d 591 ; and State v. Joslin, 364 Ark. 545 , 222 S.W.3d 168 (2006).
In Cross, the sentence was illegal because the circuit court lacked the authority to revoke the defendant’s probation and sentence her to ten years’ imprisonment when a previous order extending probation was invalid and her term of probation had ended. In Joslin, the sentence was illegal because the trial court imposed probation when the offense carried a sentencing range of three to twenty years. Neither of these cases supports the conclusion that Glaze’s sentence was illegal, nor does Cantrell. In Cantrell, a due-process argument that was not presented to the trial court could not be raised for the first time on appeal.
Glaze, a habitual offender with four pri- or felonies, was sentenced to a term of twenty-five years’ imprisonment. There are two habitual offender statutes in Arkansas and under either of them a term of twenty-five years’ imprisonment is authorized. Ark.Code Ann. § 16-90-201 provides for a sentencing range of not less than twenty years nor more than thirty years, and Ark.Code Ann. § 5-4-501 (Supp.2007) provides for a sentencing range of not less than five years nor more that forty years. Thus, Glaze’s sentence of twenty-five years was permitted under either statute, and the circuit court had the authority to impose it.
Glaze’s argument, raised for the first time in his reply brief, is that Ark.Code Ann. § 16-90-201 was repealed by implication by the enactment of Ark.Code Ann. § 5-4-501 (Supp.2007) and that the jury should have been instructed in accordance with the sentencing range found in Ark. Code Ann. § 5-4-501 (Supp.2007). However, Glaze failed to object |17to the sentencing instruction given by the circuit court and failed to proffer what he now asserts was the proper instruction. An assertion that an incorrect jury instruction was given is a due-process challenge. Gilcrease v. State, 2009 Ark. 298 , 318 S.W.3d 70 ; Hickman v. State, 872 Ark. 438 , 277 S.W.3d 217 (2008). Due-process challenges must be made before the trial court and will not be considered for the first time on appeal. Cantrell, supra. Because Glaze failed to object to the sentencing instruction before the trial court, the issue is not preserved for appellate review and I would decline to consider it.