                                  Cite as 2015 Ark. App. 449

                 ARKANSAS COURT OF APPEALS
                                         DIVISION III
                                        No. CR-14-1022


LEOPOLDO D. APODACA                              Opinion Delivered   September 9, 2015
                   APPELLANT
                                                 APPEAL FROM THE UNION
V.                                               COUNTY CIRCUIT COURT
                                                 [NO. CR-11-634]

STATE OF ARKANSAS                                HONORABLE HAMILTON H.
                                      APPELLEE   SINGLETON, JUDGE

                                                 REMANDED TO SETTLE THE
                                                 RECORD; REBRIEFING ORDERED



                          RAYMOND R. ABRAMSON, Judge


       Leopoldo D. Apodaca appeals from the Union County Circuit Court’s revocation of

his suspended sentence. On appeal, Apodaca argues that the circuit court erred by admitting

out-of-court statements that violated the Confrontation Clause. We remand the case to the

circuit court to settle the record.

       On March 13, 2012, Apodaca pled guilty to aggravated cruelty to a dog, and the

Union County Circuit Court sentenced him to twenty-four months’ imprisonment in the

Arkansas Department of Correction (“ADC”) followed by a forty-eight-month suspended

sentence. On June 25, 2014, the State filed a petition to revoke Apodaca’s suspended

sentence, alleging that he committed third-degree domestic battery against Amber Wallace

on June 15, 2014. On July 24, 2014, the circuit court held a revocation hearing.
                                 Cite as 2015 Ark. App. 449

       At the commencement of the hearing, the State requested a continuance because

Wallace was not present to testify. The State noted that Detective Scott Harwell with the El

Dorado Police Department had attempted to locate Wallace prior to the hearing, but he was

unsuccessful. The circuit court denied the State’s request and proceeded with the revocation

hearing.

       Detective Harwell then testified about his attempts to locate Wallace. Specifically,

Harwell testified that he had called Wallace’s mother on several occasions, but Wallace’s

mother informed him that she was not speaking to her daughter and had not seen her since

the June 15 incident. Harwell stated that he had visited two different residences where he

heard Wallace might be located, but he did not find her at those addresses. He also stated that

he had identified telephone numbers for Wallace, but the numbers had been disconnected.

       Officer Robert Seely with the El Dorado Police Department testified that on June 15,

2014, he performed a traffic stop on Wallace’s brother for speeding. During the stop,

Wallace’s brother informed Seely that he was speeding to meet his sister who was injured.

Seely then followed her brother to Wallace’s location where he observed Wallace bleeding

profusely from her mouth and holding both sides of her face. Seely further testified that

Wallace had difficulty talking because of a swollen jaw. Seely asked Wallace what happened,

and Wallace informed him that she had gotten into a physical altercation with her boyfriend,

Apodaca.

       During Seely’s testimony, Apodaca’s defense counsel objected, asserting that the

testimony violated the Confrontation Clause because Wallace was not present at the hearing


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and Apodaca could not cross-examine her. The circuit court overruled Apodaca’s objection

and noted that the State had “made a good-faith effort” to locate Wallace.

       Apodaca then testified on his own behalf. He stated that he did not have a physical

altercation with Wallace on June 15, 2014. He noted that he had seen Wallace and that they

had gotten into a verbal disagreement, but Wallace’s injuries “had nothing to do with [him].”

       Following his testimony, the circuit court revoked Apodaca’s suspended sentenced.

The court noted that it was

       satisfied that the confrontation issue had been addressed. A good-faith effort ha[d] been
       made by the victim in this case . . . I’m satisfied with the information given to Officer
       Seely that the injuries suffered by . . . that he observed and suffered by the victim
       Amber Wallace were delivered by this defendant on June 15 of this year.

The court then sentenced Apodaca to four years’ imprisonment.

       Thereafter, on August 29, 2014, the circuit court entered a sentencing order indicating

that Apodaca was found guilty by the court and was sentenced by the court, but the order

additionally indicates that Apodaca voluntarily, intelligently, and knowingly negotiated a

guilty plea. The Union County prosecutor also filed a short report of circumstances on August

29, 2014, that states that “[o]n July 24, the Defendant appeared before Hamilton H. Singleton

and pled guilty.” Thus, it is unclear to this court whether the circuit court found that Apodaca

violated the terms and conditions of his suspended sentence or whether Apodaca pled guilty.

Accordingly, we remand this case for the record to be settled and for the correction of the

sentencing order within thirty days of the date of this order, and we order rebriefing. Apodaca

has fifteen days after the record has been settled to file a substituted abstract, addendum, and

brief. The State will likewise be given the opportunity to file a responsive brief. We

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encourage the parties to carefully examine the record and review our rules to ensure that no

additional deficiencies are present.

       Remanded to settle the record; rebriefing ordered.

       GRUBER and HOOFMAN, JJ., agree.

       N. Mark Klappenbach, for appellant.

       Leslie Rutledge, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.




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