Trif v. State

Cite as 2016 Ark. App. 452

ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-16-57

OPINION DELIVERED OCTOBER 5, 2016

GHEDEON TRIF APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
NINTH DIVISION
[NOS. 60CR-10-1265; 60CR-10-2198]
V.
HONORABLE MARY SPENCER
McGOWAN, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED IN PART; REVERSED
IN PART

ROBERT J. GLADWIN, Chief Judge

Ghedeon Trif was sentenced in the Pulaski County Circuit Court on September 29,

2015, pursuant to a probation revocation that involved two cases with a conviction date of

October 14, 2010. On appeal, Trif contends that the trial court lacked jurisdiction to revoke

because his probation had expired on October 14, 2013. We affirm in part and reverse in

part.

I. Procedural History

On October 14, 2010, Trif pled guilty to obtaining drugs by fraud in the circuit

court case number CR 2010-1265. On the same day, he pled guilty to two counts of

delivery of a controlled substance and one count of possession of a controlled substance with

intent to deliver in case number CR 2010-2198. He was sentenced to thirty-six months’

probation in each case.
Cite as 2016 Ark. App. 452

On February 10, 2012, the State filed a petition for revocation under each case

number, CR 2010-1265 and -2198, but a bench warrant for Trif’s arrest was issued only

under the latter case number. The State alleged that Trif had violated the terms of his

probation because he was arrested on January 29, 2012, in Garland County for driving while

intoxicated and refusing to submit to a chemical test. This petition was amended on July 6,

2012, to add that Trif had also violated probation by leaving Pulaski County without

permission on the date that he had received the DWI and refusal-to-submit charges.

The bench warrant was recalled on February 14, 2012, but it was reissued on

November 5, 2012, still only under case number 10-2198. On November 8, 2012, Trif

pled guilty to violating his probation under both case numbers, but, no sentencing order

was filed because he was given an appointment for a presentence interview and a January

10, 2013 court date for sentencing. The arrest warrant was recalled on November 9, 2012.

Trif failed to appear for the sentencing hearing on January 10, 2013, and an arrest

warrant was issued only under case number 10-2198. The violations listed in the warrant

included the original three counts of possessing a controlled substance and “probation

revocation.” He was arrested on February 11, 2013, for first-degree terroristic threatening.

At the hearing on March 4, 2013, Trif’s counsel requested that the trial court pass the case

until the new charges on terroristic threatening were resolved. No sentencing order was

filed.

On April 1, 2013, the State filed an amended petition for revocation under both case

numbers and alleged that, in addition to the violations listed in the earlier petitions, Trif had

failed to appear in court on January 10, 2013, and had been arrested on February 11, 2013,
2
Cite as 2016 Ark. App. 452

for terroristic threatening. An arrest warrant was issued only under case number 10-2198 on

April 1, 2013, and the violations listed were three counts of possession of a controlled

substance and “probation revocation.” The warrant was served on April 4, 2013.

On June 17, 2013, Trif pled guilty, filing a plea statement under both case numbers,

and he again was admonished to complete a presentence interview and return to court for

sentencing. No sentencing order was filed.

On July 10, 2013, the State filed an amended petition for revocation, adding to the

original allegations that he had been arrested for attempted rape on July 5, 2013. An arrest

warrant was issued on July 10, 2013, only under case number 10-2198, listing the violations

as being three counts of possession of a controlled substance and one count of “probation

revocation.” Trif was arrested pursuant to the warrant on July 24, 2013.

On January 29, 2014, the State filed an amended petition for revocation, listing the

following offenses:

[H]e was arrested on 1-29-12 by the Garland County Sheriff’s Department for
Driving While Intoxicated and Refusal to Submit to Chemical Test, left Pulaski
County without permission from his Probation Officer on 1-29-12, failed to appear
in 9th Division Court on 1-10-13, was arrested by Pulaski County Sheriff’s Office on
2-11-13 for Terroristic Threatening-1st, was arrested by Saline County Sheriff’s
Office on 7-5-13 for Attempted Rape, and was arrested by Alexander Police on 12-
20-13 for Violation of Protection Order and Driving on a Suspended Driver’s
License. The above violations occurred after he was placed on probation.

The revocation petition was amended on February 26, 2014, to add that Trif had failed to

appear in circuit court on February 20, 2014.

3
Cite as 2016 Ark. App. 452

On July 28, 2015, Trif again pled guilty to the probation revocation under both case

numbers. 1 No sentencing order was filed, and the trial court continued the sentencing

hearing to September 22, 2015. At that hearing, the trial court sentenced Trif on four Class

C felonies, which included the revocations under both case numbers 10-1265 and -2198.

The trial court stated, “The sentence of this court is going to be ten years. It is going to

run consecutive to the sentence that you’re serving now; no fine, no court costs.” 2 This

appeal timely followed.

II. Applicable Law

The issue of whether a circuit court can revoke probation after the expiration of the

probation period is one of jurisdiction. Carter v. State, 350 Ark. 229, 233, 85 S.W.3d 914,

916 (2002). Although Trif did not raise a jurisdictional argument below, whether a trial

court has jurisdiction to revoke probation is an argument that we may address for the first

time on appeal. See Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003).

“Following a revocation hearing . . . in which a defendant has been found guilty or

had entered a plea of guilty . . . the court may . . . lengthen the period of suspension or the

period of probation within the limits set by § 5-4-306.” Ark. Code Ann. § 16-93-309(a)(2)

(Supp. 2015). A probationary period shall be set for a definite period of time, not to exceed

1
The State moved to amend the revocation petition to read “false imprisonment”
instead of “attempted rape,” and the motion was granted.
2
The trial court’s reference to the “sentence that you’re serving now” related to a
sentence he had received in the Saline County Circuit Court.

4
Cite as 2016 Ark. App. 452

the maximum jail or prison sentence allowable for the offense charged. Ark. Code Ann. §

5-4-306 (Repl. 2012).

A court may revoke a suspension or probation subsequent to the expiration
of the period of suspension or probation if before expiration of the period:
(1) The defendant is arrested for violation of suspension or probation;
(2) A warrant is issued for the defendant’s arrest for violation of suspension or
probation;
(3) A petition to revoke the defendant’s suspension or probation has been filed
if a warrant is issued for the defendant’s arrest within thirty (30) days of the
date of filing the petition; or
(4) The defendant has been:
(A) Issued a citation in lieu of arrest under Rule 5 of the Arkansas
Rules of Criminal Procedure for violation of suspension or probation;
or
(B) Served a summons under Rule 6 of the Arkansas Rules of Criminal
Procedure for violation of suspension or probation.

Ark. Code Ann. § 16-93-308(f) (Supp. 2015) (emphasis added); see also McJoy v. State, 2016

Ark. App. 337, at 2 n.1; and Johnson v. State, 2015 Ark. App. 353, at 2 n.2. Our supreme

court has stated the following:

We construe criminal statutes strictly, resolving any doubts in favor of the
defendant. Short v. State, 349 Ark. 492, 79 S.W.3d 313 (2002). We construe a statute
just as it reads, giving the words their ordinary and usually accepted meaning in
common language, and if the language of the statute is plain and unambiguous, and
conveys a clear and definite meaning, there is no occasion to resort to rules of
statutory interpretation. Id. In construing any statute, we place it beside other statutes
relevant to the subject matter in question and ascribe meaning and effect derived
from the whole. Id. However, we will not interpret a statute, even a criminal one,
so as to reach an absurd conclusion that is contrary to legislative intent. Windsor v.
State, 338 Ark. 649, 1 S.W.3d 20 (1999).

Harness v. State, 352 Ark. 335, 342, 101 S.W.3d 235, 240 (2003).

III. Jurisdiction to Revoke Probation

Trif argues that the trial court lacked jurisdiction to revoke his probation on July 28,

2015, because it had expired on October 14, 2013—three years after it had been imposed
5
Cite as 2016 Ark. App. 452

by entry of judgment-and-disposition orders in each case on October 14, 2010. Trif asserts

that the trial court did not cause to be entered any judgment or sentencing order extending

his period of probation beyond three years. See Carter, supra (where the circuit court lost

jurisdiction to revoke probation upon expiration of the probation period, probationer was

not arrested, nor was an arrest warrant issued for a probation violation before the probation

period had expired). Thus, Trif claims that the circuit court lacked jurisdiction to revoke

his probation, and this court should reverse and dismiss the two sentencing orders entered

against him.

The State contends that the trial court had jurisdiction to revoke Trif’s probation

based on Arkansas Code Annotated section 16-93-308(f) because he had been arrested for

a probation violation. See Williams v. State, 2015 Ark. App. 245, 459 S.W.3d 814 (where

appellant’s probation was revoked after the original probation period had expired because

he was arrested for the violation prior to his probation’s expiration). Here, Trif was arrested

for a violation of probation on February 11, 2013, April 3, 2013, and July 24, 2013, all prior

to October 14, 2013, thus falling under Arkansas Code Annotated section 16-93-308(f)(1).

The State also contends that, based on Arkansas Code Annotated section 16-93-

308(f)(2), probation may be revoked beyond the probationary period if a valid arrest warrant

has been issued before the expiration of a probation period. Here, warrants were issued for

Trif’s arrest for a violation of his probation on February 10, 2012, November 5, 2012,

January 10, 2013, April 1, 2013, and July 10, 2013. Thus, the State contends that Trif’s

revocation should be affirmed.

6
Cite as 2016 Ark. App. 452

In his reply brief, Trif asserts that the arrest warrants relied on by the State were

issued only in case number 10-2198. He contends that the warrants do not satisfy either

subsection 308(f)(1) or 308(f)(2). Trif “acknowledges” that these subsections “have some

ambiguity.” He asks this court to consider whether service of any probation-revocation

arrest warrant, even one not issued or served with respect to the probation-revocation case

at issue, but with respect to some other probation-revocation case, may satisfy the statute.

We hold that it does not and agree that without entry of a sentencing order or an

order extending Trif’s probation, despite Trif’s plea of guilty, the circuit court lost

jurisdiction of case number 10-1265 because Trif was not arrested nor was an arrest warrant

issued pursuant to that case number. Resolving all doubts in the interpretation of probation-

revocation statutes in favor of the defendant, Carter, supra, we hold that the arrest warrant

issued and served in connection with case number 10-2198 was insufficient to give the trial

court jurisdiction to revoke an expired period of probation in case number 10-1265.

Therefore, we reverse and dismiss the sentencing order entered in case number 10-1265 on

September 29, 2015, and affirm the sentencing order in case number 10-2198.

We note that Trif contends this reversal and dismissal would lower his aggregate

sentence from twenty to ten years. 3 We find that the remaining sentencing order under

case number 10-2198 is unambiguous in its 120-month aggregate sentence.

3
The sentencing order filed September 29, 2015, in case number 10-2198 reflects
that Trif was sentenced to 120 months’ imprisonment in the Arkansas Department of
Correction (ADC) for two counts of delivery of hydrocodone/acetaminophen, consecutive
to case number 10-1265 and “time being served,” and 120 months’ imprisonment in ADC
for one count of possession of hydrocodone/acetaminophen, consecutive to all counts or
case number 10-1265 and “time being served.” The sentencing order filed September 29,
7
Cite as 2016 Ark. App. 452

Affirmed in part; reversed in part.

VIRDEN and GLOVER, JJ., agree.

Haylie Lott, Deputy Pub. Def., by: Clint Miller, Deputy Pub. Def., for appellant.

Leslie Rutledge, Att’y Gen., by: Evelyn D. Gomez, Ass’t Att’y Gen., for appellee.

2015, in case number 10-1265 reflects that Trif was sentenced to 120 months’ imprisonment
in ADC for one count of obtaining drugs by fraud, consecutive to case number 10-2198
and “time being served.” Both orders reflect that the total time to be served for all offenses
was 120 months. Under “additional info,” the trial court states in both, “Sentenced to 120
months at ADC; no fine & no court costs assessed, no expungement; 123 days jail credit;
both cases to run consecutive with time being served.”
8