Marty Dean Moore v. State of Arkansas

Cite as 2022 Ark. App. 185
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-20-739

MARTY DEAN MOORE OPINION DELIVERED APRIL 27, 2022
APPELLANT
APPEAL FROM THE SALINE
COUNTY CIRCUIT COURT
[NO. 63CR-18-229]
V.

HONORABLE GARY ARNOLD,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED; REMANDED TO
CORRECT SENTENCING ORDER

ROBERT J. GLADWIN, Judge

The Saline County Circuit Court revoked Marty Dean Moore’s probation on

September 10, 2020. Moore was sentenced to fifty-four months’ incarceration in the

Arkansas Department of Correction (ADC) and thirty-six months’ probation with no credit

for time served in jail. On appeal, Moore argues that the circuit court erred by sentencing

him illegally and by disallowing any jail-time credit. We affirm Moore’s revocation and

remand for the circuit court to correct his sentence.

I. Facts

On March 2, 2018, Moore was charged with failure to appear and possession of a

controlled substance. He negotiated a guilty plea, and the State nolle prossed the possession

charge. He was sentenced to thirty-six months’ probation for failure to appear contingent
on conditions, including that he commit no criminal offenses; pay $820 in costs, fines, and

fees; and pay monthly supervision fees.

On February 10, 2020, the State filed a revocation petition alleging that on November

12, 2019, Moore had committed “Failure to Appear (x4), and Computer Child Pornography

(x14).” The petition further alleged that Moore had not reported for a ninety-day

Supervision Sanction Program (SSP); failed to report for three scheduled office visits; failed

to provide an apartment number with his address; failed to provide proof of employment;

and was delinquent in paying supervision fees, fines, and costs. Moore was served with the

bench warrant on February 14.

A revocation hearing was held on August 25, and Probation Officer Brittney Cathey

testified that Moore had initialed and signed his probation conditions. She said that Moore

is $350 behind in supervision fees, that as of January 21, 2020, he owed $1300 in court costs

and fines, and that he had not made any payments in the two years he had been on

probation. She said that in 2019, Moore failed to report for his office visits on June 14, June

17, and August 14, and he also failed to complete a treatment program ordered in Garland

County on April 29.1 She said that officers conducting a home visit on August 15, 2019,

could not locate his residence because Moore had provided a road name with no apartment

number. She said that Moore was arrested on November 12, 2019, for new failure-to-appear

1
The testimony and arguments in the record indicate that Moore had been sentenced
in the Garland County Circuit Court—under a separate probation case based on
nonpayment of child support—to an SSP for drug treatment, but he was released from the
Garland County jail before being transferred to a facility for this program.
2
offenses “times four” and computer child pornography “times 14.” She said that since

Moore’s arrest, the computer-child-pornography counts were raised to forty-nine. Benton

Police Detective Dustin Derrick testified regarding the circumstances leading to Moore’s

arrest on the child-pornography and failure-to-appear charges. After Moore testified, the

circuit court granted the State’s revocation petition and ordered a presentencing report.

At the sentencing hearing, Moore’s attorney asked the court to extend Moore’s

probation with an added condition that he complete a drug-rehabilitation program. The

circuit court sentenced Moore to fifty-four months’ imprisonment in the ADC, reasoning

that “the most appropriate thing is to be sure he gets intensive secure rehab.”2 Moore asked,

“I don’t get no credit at all for the 292 days that I’ve already been here?” The court

responded, “No. That’s exactly what I said. That doesn’t count toward this sentence.”

On September 10, a sentencing order was filed, and it reflects that Moore was

sentenced to fifty-four months’ incarceration in the ADC and thirty-six months’ probation

with no jail-time credit. On September 16, Moore moved to request credit for time spent in

custody. He alleged that he was arrested on November 11, 2019, for “failure to comply with

the rules” of his probation and that he has remained in jail since that time. He asked for

295 days’ jail-time credit against his fifty-four-month sentence. Also on September 16, Moore

2
The circuit court first announced that Moore would be sentenced to thirty-six
months’ incarceration; however, the court changed the sentenced to fifty-four months,
making Moore eligible for parole no sooner than nine months after he is admitted and
reasoning that Moore would remain in ADC for “at least the time necessary to get the most
intensive drug-treatment program they have.”

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moved for reconsideration, asking that the court reconsider his fifty-four-month sentence to

ADC because he was sentenced for noncompliance with probation and failure to pay child

support. These motions were deemed denied under Rule 33.3 of the Arkansas Rules of

Criminal Procedure, and on October 2, Moore filed a timely notice of appeal. 3 This appeal

followed. 4

II. Illegal Sentence

Moore contends that the circuit court erred by illegally sentencing him to probation

following his term of imprisonment.

On review of the legality of a sentence, we must determine whether the trial
court had the authority to impose a particular sentence and not whether the sentence
is illegal on its face or within the prescribed statutory range. Glaze v. State, 2011 Ark.
464, at 7, 385 S.W.3d 203, 209. The touchstone for determining whether a sentence
is illegal or void is the trial court’s “authority to act.” Id., 385 S.W.3d at 209. A
sentence is illegal if the trial court is without the authority to impose it, even if on its
face it is within the statutory range. Id., 385 S.W.3d at 209. Because sentencing is
entirely a matter of statute, the trial court only has the authority to impose a particular
sentence when it complies with the applicable statute. Id., 385 S.W.3d at 209.

Wakeley v. State, 2013 Ark. App. 231, at 4. Further, the Arkansas Supreme Court held,

[W]e treat allegations of void or illegal sentences similar to problems of subject matter
jurisdiction in that we review such allegations whether or not an objection was made
in the trial court. Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986). A sentence
is void when the trial court lacks authority to impose it. Id. Here, appellant asserts

3
A notice of appeal filed before disposition of any posttrial motions shall be treated
as filed on the day after the motion is deemed denied by operation of law and is effective to
appeal the underlying judgment or order. Ark. R. App. P.–Crim. 2(b)(2) (2021).
4
On May 3, 2021, counsel filed in this court a motion to withdraw, arguing that
Moore’s sentence should be affirmed. We ordered rebriefing, see Moore v. State, 2022 Ark.
App. 5, and Moore’s appeal brief was refiled on meritorious grounds.

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that the trial court was without authority to impose a sentence of imprisonment
followed by probation. Therefore, we address the merits of appellant’s argument.

[Arkansas Code Annotated] section 5-4-104(a) provides that a trial court’s
disposition of a defendant is to be conducted in accordance with Chapter 4 of the
Arkansas Criminal Code. Section 5-4-104(e)(3) provides that a trial court may
sentence the defendant to a term of imprisonment and suspend imposition of a
sentence as to an additional term of imprisonment, but the court shall not sentence
a defendant to imprisonment and place him on probation, except as authorized by
section 5-4-304.

Bangs v. State, 310 Ark. 235, 239, 835 S.W.2d 294, 295–96 (1992).

Moore was sentenced to fifty-four months’ imprisonment in ADC plus thirty-six

months’ probation. Pursuant to Bangs, Moore urges this court to correct his sentence or

vacate the sentence and remand the case to the circuit court. See Ark. Code Ann. § 5-4-

104(e)(3)(B) (Supp. 2021).

The State concedes that Moore cannot be sentenced to imprisonment followed by

probation. However, it urges this court to affirm Moore’s revocation and modify the

sentence from probation to thirty-six months’ suspended imposition of sentence after Moore

is released from incarceration without the requirement that he report to a probation officer

as a condition of his suspension. See Kennedy v. State, 2021 Ark. App. 413, at 9–10, 635

S.W.3d 524, 528–29 (holding that provision requiring defendant report to a supervising

officer as a condition of his suspended imposition of sentence is prohibited and modifying

sentence to delete reporting requirement).

The record does not support the State’s position. Even though Moore’s counsel

sought extended probation and drug rehabilitation in lieu of imprisonment, the circuit court

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sentenced Moore to a term that would allow for drug rehabilitation but did not mention a

suspended or probationary sentence. Nonetheless, the sentencing order reflects an illegal

probationary sentence to follow imprisonment. Thus, we affirm Moore’s revocation and

remand for the circuit court to correct Moore’s sentence in compliance with Arkansas Code

Annotated section 5-4-104.

III. Jail-Time Credit

A defendant will receive credit for time served when he was incarcerated before a trial,

even in the case where he was unable to make bail. Boone v. State, 270 Ark. 83, 603 S.W.2d

(1980). The cause of the confinement must be related to the offense for which the defendant

is seeking to receive time served or jail credit. Id.; see also Cox v. State, 288 Ark. 300, 705

S.W.2d 410 (1986).

Moore argues that the circuit court erred by not granting him jail-time credit, and he

relies on Arkansas Code Annotated section 16-93-309(e) (Supp. 2021), which states:

If the suspension of sentence or probation of a defendant is subsequently
revoked and the defendant is sentenced to a term of imprisonment, any period of
time actually spent in confinement due to the original revocation shall be credited
against the subsequent sentence.

Moore claims that he was arrested on a probation violation; thus, he argues that when the

statute is applied with the holding in Boone, he is entitled to 203 days’ jail-time credit for

time served between his arrest on February 10, 2020, and the sentencing hearing because he

was not released on bond before his revocation hearing. Boone, supra.

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We hold that the circuit court committed no error in denying Moore’s request for

jail-time credit. First, Moore’s reliance on Arkansas Code Annotated section 16-93-309(e) is

misplaced. The statute addresses a situation in which a defendant’s suspension or probation

is revoked twice, the second time resulting in a sentence to imprisonment. Burgess v. State,

2016 Ark. 175, at 13, 490 S.W.3d 645, 653. A defendant in that situation is entitled to a

credit against his sentence to imprisonment for the time he served in confinement for the

first revocation. Id. Accordingly, the statute is inapplicable.

Second, Moore’s argument that he was arrested for a probation violation is

inaccurate. Moore was arrested on November 11, 2019, on four counts of failure to appear

and fourteen counts of possession of child pornography, and the record reflects that Moore

was unable to make bail on those charges. “Jail time credit is . . . appropriate when a

defendant’s pretrial incarceration is due to his inability to make bail, but is inappropriate for

time served in connection with wholly unrelated charges based on conduct other than for

which the defendant is ultimately sentenced.” Boone, 270 Ark. at 85, 603 S.W.2d at 412.

Thus, Moore is not entitled to credit for time spent in jail as a result of the November 2019

arrest because it was wholly unrelated to his sentence on the charges underlying his

probation.

Affirmed; remanded to correct sentencing order.

KLAPPENBACH and HIXSON, JJ., agree.

Jones Law Firm, by: F. Parker Jones III, Christopher Tolleson, and Vicram Rajgiri, for

appellant.

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Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Sr. Ass’t Att’y Gen., for appellee.

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