Jamie Demon Jacobs v. State of Arkansas

Cite as 2023 Ark. App. 21
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-22-175

Opinion Delivered January 25, 2023
JAMIE DEMON JACOBS
APPELLANT
APPEAL FROM THE COLUMBIA
V. COUNTY CIRCUIT COURT
[NO. 14CR-19-241]
STATE OF ARKANSAS
APPELLEE
HONORABLE DAVID W. TALLEY, JR.,
JUDGE

REMANDED TO SETTLE AND
SUPPLEMENT THE RECORD

CINDY GRACE THYER, Judge

Jamie Demon Jacobs appeals the Columbia County Circuit Court’s order revoking

his suspended imposition of sentence (SIS) and sentencing him to a combined total of twenty

years in the Arkansas Department of Correction (ADC). As his sole argument on appeal, he

claims he was improperly sentenced upon revocation. Because the record before us does not

contain the information necessary for us to sufficiently review and decide this issue, we must

remand the matter to the circuit court to settle the record.

In 2019, Jacobs was charged as a habitual offender with seven counts of aggravated

assault and eight counts of first-degree terroristic threatening. He subsequently pled guilty to

two of the terroristic-threatening counts listed as counts fourteen and fifteen of the
information.1 In exchange for his guilty plea on these charges, the other thirteen charges

were nolle prossed.

The sentencing order was filed on March 20, 2020. As to count fourteen, the court

imposed a sentence of twelve months in the ADC followed by ten years’ SIS. As to that

count, the court placed a checkmark in the box indicating that Jacobs was being sentenced

as a habitual offender pursuant to Arkansas Code Annotated section 5-4-501(a) (Supp. 2021)

and identified his habitual-offender status as an aggravating reason for a departure from the

presumptive sentencing range.

As to count fifteen, however, the sentencing order imposed only a ten-year SIS. It did

not reflect any additional term of incarceration. And while the box indicating that Jacobs

was being sentenced as a habitual offender pursuant to section 5-4-501(a) had been checked,

the order indicated that the sentence imposed was not a departure from the presumptive

sentence.

On November 1, 2021, the State filed a petition to revoke Jacobs’s suspended

sentence,2 alleging that he had violated the conditions of his suspended sentence by

1
On that same day, Jacobs pled guilty as a habitual offender to one count of possession
of a controlled substance (methamphetamine or cocaine) in case No. 14CR-19-186 and was
sentenced to twelve months in the ADC with 120 months’ SIS. The sentencing order clearly
specified that he was being sentenced as a habitual offender and that his sentence was to run
concurrently with the underlying sentence in the instant case and the sentence imposed in
case No. 14CR-13-56C.
2
The State alleged in the petition to revoke that Jacobs had been sentenced to one
year in the ADC and ten years’ SIS in case No. 14CR-19-241 on two counts of terroristic
threatening.

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committing a criminal offense punishable by imprisonment, by possessing and using

controlled substances, and by failing to pay costs in his underlying cases. 3

A revocation hearing was held on December 16, 2021, at which time Jacobs, Magnolia

Police Sergeant Liz Colvin, and Community Corrections Officer Thomas Fenske testified

regarding the allegations contained in the petition. After considering the evidence presented,

the circuit court revoked Jacobs’s suspended sentence, finding that he had violated the terms

and conditions of his SIS.4

However, before the court could impose the sentence on revocation, the following

colloquy occurred between the court and defense counsel:

COUNSEL: Secondhand, as The Court makes its decision as to sentencing, I’d like to
draw The Court’s attention to 19-241, in which he was sentenced to one
year A.D.C, ten years suspended on two counts of Terroristic
Threatening. I just want to ensure that The Court is aware; It appears
based on the Sentencing Order, that it’s labeled as offense number fifteen.
He was sentenced to a hundred and twenty months or ten years suspended
as a habitual offender and I think the intent was for him to serve one year

3
The charged offenses were felony fleeing in a vehicle, running a stop sign, driving
with a suspended driver’s license, possession of drug paraphernalia, and possession of
methamphetamine and marijuana. As for the possession/use allegation, Jacobs was found in
possession of methamphetamine and marijuana on or about October 5, 2021, and he tested
positive for amphetamine, methamphetamine, and marijuana on October 6, 2021. Finally,
at the time of the filing of the petition, he owed $575 in case Nos. 14CR-19-186 and 14CR-
19-241.
4
The court found that he had violated the terms and conditions of his sentence by
testing positive for amphetamine, methamphetamine, and marijuana and by committing the
felony offenses of fleeing in a vehicle, driving with no driver’s license, possession of drug
paraphernalia, and possession of methamphetamine and marijuana. The court did not make
a finding with regard to the delinquency in payment of his fines and fees because he had not
had an opportunity to make any payments given the short period of time between his release
and his subsequent arrest on new charges.

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A.D.C. on each count. It appears that he was not sentenced to one, that
one year in A.D.C. was not imposed on one of those counts, so we’d just
ask the Court to make a note of that upon making a decision.

COURT: I think that he was sentenced to one year on each count to run
concurrently and then ten years S.I.S. on –

COUNSEL: That’s correct, Your Honor.

COURT: -- each of the others and as an habitual offender.

COUNSEL: That’s correct.

COURT: Okay.

COUNSEL: I just was making sure, because in one of the counts it does not show that
an A.D.C. sentence was imposed on that particular count.

The State then made its sentencing recommendation after which the court orally imposed a

ten-year sentence on each count to run consecutively to each other. 5

Defense counsel then asked for clarification as to the length of sentence available for

imposition on count fifteen. More specifically, she asserted that because no term of

imprisonment had been imposed on count fifteen in the original sentencing order, Jacobs

could not be sentenced on revocation as a habitual offender and that only six years was

available on that count. The circuit court indicated that on the basis of its notes, Jacobs had

been sentenced as a habitual offender on all counts; that for a Class D felony the term for a

habitual offender was zero to twelve years; and because one year was imposed on each count,

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The court also ordered that these sentences were to run consecutively to the ten-year
sentence in case No. 14CR-19-186 for an effective sentence of thirty years. The court also
waived the previous imposition of court costs.

4
Jacobs could be sentenced up to eleven years on revocation. Defense counsel agreed that the

court had intended to sentence Jacobs to one year on each count but asserted once again

that Jacobs had not actually been sentenced as a habitual offender because no time had been

imposed on count fifteen. The State, agreeing that the original sentencing order had failed

to impose any term of incarceration on count fifteen, stated that any discrepancy could be

cured if the docket sheet reflected a different sentence had been imposed. The State also

noted that the habitual-offender designation on the sentencing order as to count fifteen had

been marked, to which the court responded, “Well, that’s at least both my recollection and

the docket sheet, but I guess it does create a potential issue, but I will leave that for somebody

else to sort out.” The court then signed a sentencing order imposing consecutive ten-year

sentences on both counts without amending the original sentencing order. Jacobs has timely

appealed.

The issue we are presented with on appeal is whether the ten-year sentence imposed

by the circuit court on Jacobs’s Class D felony terroristic-threatening conviction exceeded

the maximum sentence allowed by law. If a court revokes a defendant’s suspension of

sentence or probation, the court may enter a judgment of conviction and may impose any

sentence on the defendant that might have been imposed originally for the offense of which

he or she was found guilty. Ark. Code Ann. § 16-93-308 (Supp. 2021). In Arkansas, the

maximum sentence allowed for a Class D felony is six years. Ark. Code Ann. § 5-4-401(a)(5)

(Repl. 2013). However, if the defendant is found to be a habitual offender with more than

one but fewer than four felonies, Arkansas law provides for an extended term of

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imprisonment of not more than twelve years for a Class D felony. Ark. Code Ann. § 5-4-

501(a)(1) & (a)(2)(E). Thus, the ten-year sentence imposed by the court upon revocation is

valid only if Jacobs was originally sentenced as a habitual offender.

On appeal, Jacobs asserts that he was not sentenced as a habitual offender in the

original sentencing order; thus, the maximum sentence he could receive would be six years.

In support of his argument, he cites Arkansas Code Annotated section 5-4-501, claiming it

requires that habitual offenders be sentenced to a period of incarceration in the ADC.

Because he was not ordered to serve any time in the ADC and only received a suspended

sentence, he claims he was not sentenced as a habitual offender. As to the fact that the

habitual-offender-designation box had been marked, Jacobs contends this was an inadvertent

clerical error.

The State, on the other hand, argues that Jacobs was sentenced as a habitual offender

in the original sentencing order and that no period of incarceration is required for Jacobs to

be classified as a habitual offender because the minimum statutory sentence for Class D

felonies, standard or habitual, is zero. In the alternative, the State argues that the court

intended to impose a one-year sentence in the ADC and that its failure to do so was a clerical

error.

Here, both parties have alleged that certain provisions of the original sentencing order

that are essential to our review of the issue on appeal contain clerical errors. The circuit court

was notified of the conflicting provisions, acknowledged that the original order did not

accurately reflect the court’s intended sentence, yet declined to enter a corrected order. But

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when the court announced its sentence on revocation, it seemingly relied on the intended,

rather than the actual, sentence in determining Jacobs’s status as a habitual offender and in

imposing the ten-year sentence on revocation. As a result, this court is left with unresolved

questions regarding the factual basis for the court’s imposition of an extended term of

imprisonment.

Because the proper disposition of the issues on appeal in this case requires findings

of fact that must be made in the circuit court, we remand the matter to the circuit court with

specific instructions to settle the question as to what, if any, clerical errors exist as to the

original sentencing order; to correct the original sentencing order nunc pro tunc if any

clerical errors are found to exist; and to supplement the record with a transcript of the

original sentencing hearing, the court’s docket sheets from the original guilty-plea hearing,

and any other evidence in the record to support the court’s findings regarding the clerical-

error issue. The supplemental record is to be returned within thirty days of this order.

Remanded to settle and supplement the record.

HARRISON, C.J., and VIRDEN, J., agree.

Erin W. Lewis, for appellant.

Leslie Rutledge, Att’y Gen., by: Walker K. Hawkins, Ass’t Att’y Gen., for appellee.

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