                                 Cite as 2016 Ark. App. 204

                 ARKANSAS COURT OF APPEALS
                                       DIVISION IV
                                       No. CR-15-916


MICHAEL TODD                                      Opinion Delivered April 13, 2016
                               APPELLANT
                                                  APPEAL FROM THE HEMPSTEAD
V.                                                COUNTY CIRCUIT COURT
                                                  [NOS. CR-2009-74 and CR-2009-75]

STATE OF ARKANSAS                                 HONORABLE DUNCAN
                                  APPELLEE        CULPEPPER, JUDGE

                                                  AFFIRMED



                               RITA W. GRUBER, Judge

       Michael Todd appeals the sentences that the Circuit Court of Hempstead County

imposed on him after it revoked his suspended imposition of sentence (SIS) in two criminal

cases. He contends, as he did at the revocation hearing, that it was error for the circuit court

(1) to run the sentences consecutively rather than concurrently and (2) to sentence him

without evidence of the date on which the SIS began in the underlying cases. He also argues

on appeal that his original sentences were facially illegal pursuant to Ark. Code Ann. § 5-4-

301(a)(2)(A) (Supp. 2009). See State v. Webb, 373 Ark. 65, 69, 281 S.W.3d 273, 276 (2008)

(noting that a void or illegal sentence is an issue of subject-matter jurisdiction, which cannot

be waived by the parties and may be addressed for the first time on appeal). We affirm.

       In case number CR-2009-74, Todd was charged as a habitual offender with ten Class

C felonies—nine counts of fraudulent use of a credit card or debit card, and one count of theft

by receiving. In case number CR-2009-75, he was charged as a habitual offender with Class
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D felony breaking or entering and Class C felony theft of property, and was also charged with

two Class A misdemeanors—theft of property and fraudulent use of a credit card or debit

card. He pleaded no contest to all charges and on May 28, 2009, was sentenced on each

felony to concurrent terms of eight years’ imprisonment in the Arkansas Department of

Correction (ADC) to be followed by seven years’ SIS. Conditions of the SIS required that

Todd obey all federal and state laws.

       On June 4, 2014, the State filed its petition to revoke his SIS in both cases, alleging

that Todd had violated conditions by committing the crime of forgery in Howard

County—for which he had been convicted—and the crimes of commercial burglary, breaking

or entering, and theft of property in Hempstead County. At a June 9, 2014 revocation

hearing, the circuit court found the allegations in the revocation petition to be true. Todd

objected to sentencing without proof of his release from the ADC. The circuit court took

the matter under advisement. On June 11, 2014, the State filed a motion to reopen the

record for supplemental proof. In a previous opinion, we recounted the proceedings that

took place when the revocation hearing resumed:

       On June 16, 2014, the circuit court granted the State’s motion to reopen record for
       supplemental proof. The State entered a certified copy of the PEN pack, and the
       circuit court found that appellant had five years remaining on his suspended sentence.

               Based upon that finding, appellant was sentenced, in CR-2009-74, to ten
       sixty-month sentences to run consecutive to each other and consecutive with the
       Howard County case and the other Hempstead County cases. In CR-2009-75, the
       circuit court sentenced appellant to two sixty-month sentences to run consecutive to
       each other and consecutive with CR-2009-74 and consecutive with the Howard
       County case and the other Hempstead County cases for a total, in both cases, of sixty
       years in the ADC. Sentencing orders were filed on June 26, 2014, and amended
       sentencing orders were filed on July 8, 2014.

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Todd v. State, 2015 Ark. App. 356, at 2–3, 465 S.W.3d 435, 436.1

       Todd now argues in his first point that at the time of his revocation sentencing, the

circuit court lacked jurisdiction “to change, modify, alter, or amend the judgment from

concurrent to consecutive.” See Burks v. State, 2009 Ark. 598 at 4 n.2, 359 S.W.3d 402, 406

(noting that a circuit court may not modify a valid sentence once execution of the sentence

has begun); Lambert v. State, 286 Ark. 408, 409, 692 S.W.2d 238, 239 (1985) (stating the

general rule that if the original sentence is illegal, even though partially executed, the

sentencing court may correct it). He also argues that his original sentencing of seven years’

SIS was illegal on its face under Ark. Code Ann. § 5-4-301(a)(2)(A), which prohibits

suspending imposition of sentence if the defendant has previously been convicted of two or

more felonies.

       Because sentencing is entirely a matter of statute in Arkansas, no sentence is to be

imposed other than as statutorily prescribed. Ark. Code Ann. § 5-4-104 (Supp. 2009); e.g.,

Esry v. State, 2014 Ark. 539, at 4, 453 S.W.3d 144, 146 (per curiam). A sentence within the

limits set by statute is a legal sentence, and a void or illegal sentence is one exceeding the

statutory parameters for the convicted defendant’s offense. Id.

       Todd argues that in May 2009 the trial court did not have authority to sentence him

to a suspended sentence because, as a habitual offender, he was not entitled to a suspended


       1
        We dismissed Todd’s first appeal on finding that his notice of appeal was flagrantly
deficient and ineffective and that we lacked jurisdiction because of the ineffective notice of
appeal. Id. at 6, 465 S.W.3d 435, 436–38. The present appeal follows our supreme court’s
granting Todd’s motion for belated appeal. Todd v. State, 2015 Ark. 452, at 2 (per curiam).


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sentence under Ark. Code Ann. § 5-4-301(a)(2)(A). He concludes, therefore, that the

original sentence imposed in May 2009 was illegal. We disagree.

       A previous case, Chadwell v. State, 80 Ark. App. 133, 91 S.W.3d 530 (2002), presented

a similar argument that the original sentence was illegal because, based on the defendant’s

habitual-offender status, the circuit court lacked authority to suspend a portion of it. The

appellant in that case cited language of Ark. Code Ann. § 5-4-104(e)(4) (1987), which later

was repealed but used language identical to that now found in Ark. Code Ann. §

5-4-301(a)(2)(A), which governs the present case. Both statutes provide that a circuit court

shall not suspend imposition of sentence if it is determined, pursuant to other statutory

provisions, that the defendant has previously been convicted of two or more felonies. The

Chadwell court found that the circuit court, being authorized to sentence the appellant as a

habitual offender to a range of ten to twenty years and having imposed a sentence of ten years’

imprisonment, did not lack authority to impose an additional ten-year suspended sentence.

Chadwell, 80 Ark. App. 133, 136, 91 S.W.3d 530, 532. We interpreted the statute to prohibit

suspension of a term of imprisonment, but we found that—as long as only a portion was

suspended beyond the statutory minimum term—the trial court was free to suspend an

additional term in the habitual range. See Chadwell, 80 Ark. App., at 136–37, 91 S.W.3d 530,

532; cf. State v. O’Quinn, 2013 Ark. 219, 427 S.W.3d 668 (finding a suspension below the

habitual minimum term of imprisonment to be illegal).

       “The legislature is presumed to be familiar with the appellate courts’ interpretation of

its statutes, and it can amend a statute if it disagrees with those interpretations; absent such an


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amendment, the interpretation of the statute remains the law.” Pedraza v. State, 2015 Ark.

App. 205, at 5. Because the General Assembly has not rejected Chadwell v. State, supra, our

interpretation of former section 5-4-104(e)(4) refutes Todd’s argument that section

5-4-301(a)(2)(A) prohibits the suspension of any portion of a habitual sentence.

       Todd next contends that the State failed to present evidence of the date his suspension

began for the purpose of determining the remaining time of suspension. On June 16, 2014,

when the revocation hearing reconvened, the State presented its supplemental evidence of

Todd’s release date from the ADC. The State introduced a “pen pack” showing that Todd

was released on June 28, 2012, from the ADC to the supervision of the Texarkana P &

P—which governs probation and parole; the State contended that after June 28, 2012, he had

just over five years left on each suspended sentence. Todd argues that because the Texarkana

unit is part of the ADC, the evidence was insufficient to show that he was “set at liberty” and

that his suspensions thus began to run on June 28, 2012. We find that the State sufficiently

proved, through documentation, the date that Todd was “set at liberty”—albeit under

supervision.

       Todd was charged and sentenced as a habitual offender for eleven Class C felonies and

one Class D felony, with respective maximum sentences of thirty years and fifteen years. See

Ark. Code Ann. § 5-4-501(b)(2) (setting forth extended terms of imprisonment for defendants

meeting the criteria of section 5-4-501(b)(1)). The circuit court, which had authority in the

original sentencing to impose up to eleven consecutive thirty-year terms of imprisonment and

one fifteen-year term of imprisonment, imposed only an aggregate term of eight years’


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imprisonment to be followed by seven years’ SIS.

       Pursuant to the plain language of Ark. Code Ann. § 5-4-301(d)(2) and Ark. Code

Ann. § 5-4-309(f)(1)(A), the circuit court was authorized at revocation to modify the original

order and impose any sentence that originally could have been given. Todd was originally

placed on suspension on multiple counts, served concurrently by statute. The circuit court

revoked the suspended sentences on all remaining counts, ordering sentences after revocation

within the parameters authorized by statute for each of the felony convictions. See Ark. Code

Ann. § 5-4-401. Furthermore, the trial court was permitted, based on Ark. Code Ann. §

5-4-403(a), to order that multiple sentences of imprisonment for multiple offenses be run

consecutively, including those where suspension had been revoked. See also Cheater v. State,

2010 Ark. App. 652, at 3 (rejecting Cheater’s argument that the circuit court sentenced him

to illegal consecutive sentences upon revocation because it had originally ordered concurrent

sentences).

       For the foregoing reasons, we affirm.

       ABRAMSON and VAUGHT, JJ., agree.

       Anthony S. Biddle, for appellant.

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




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