                                Cite as 2014 Ark. App. 560

                 ARKANSAS COURT OF APPEALS
                                       DIVISION IV
                                       No. CR-14-11


JONATHAN JOHNS                                   Opinion Delivered   October 22, 2014
                               APPELLANT
                                                 APPEAL FROM THE PULASKI
                                                 COUNTY CIRCUIT COURT,
V.                                               FIFTH DIVISION
                                                 [NO. CR2012-3853]

                                                 HONORABLE WENDELL GRIFFEN,
STATE OF ARKANSAS                                JUDGE
                                 APPELLEE
                                                 AFFIRMED



                          PHILLIP T. WHITEAKER, Judge


       Appellant Jonathan Johns was charged by felony information with one count of

maintaining drug premises, a Class C felony; one count of possession of less than two grams

of a controlled substance, a Class D felony; and one count of possession of drug

paraphernalia, also a Class D felony. The information also reflected that Johns, who had been

previously convicted of four or more felony offenses, was subject to the sentence-

enhancement provisions of Arkansas Code Annotated section 5-4-501(b) (Repl. 2006). Johns

waived his right to a jury trial, and the Pulaski County Circuit Court found him guilty of the

two Class D felonies. He was acquitted of maintaining a drug premises. After a separate

sentencing hearing, the court sentenced Johns to three years on each count, to be served

concurrently. On appeal, Johns asserts that the written jury-waiver form he filled out was
                                  Cite as 2014 Ark. App. 560

invalid because the waiver did not specifically state that he was facing habitual-offender

sentencing on each of the charges.1 We find no error and affirm.

       The right to be tried by a jury is guaranteed under the Sixth Amendment to the

United States Constitution and article 2, section 7, of the Arkansas Constitution. When a

defendant exercises his constitutional right to be tried by a jury, then the jury in a separate

proceeding fixes the appropriate statutory punishment. See Ark. Code Ann. § 5-4-103(a)

(Repl. 2006).

       While the constitution guarantees a right to be tried by a jury, there is no

constitutional right to be sentenced by a jury. Bunch v. State, 344 Ark. 730, 738, 43 S.W.3d

132, 137 (2001) (citing Spaziano v. Florida, 468 U.S. 477 (1984); Scherer v. State, 294 Ark.

227, 742 S.W.2d 877 (1988)). A defendant may, moreover, waive his constitutional right to

be tried by a jury. Ark. R. Crim. P. 31.2. When a defendant waives his right to be tried by

a jury, he waives his statutory right to be sentenced by a jury.2 See Ark. Code Ann. § 5-4-

103(b)(2) (Repl. 2006) (“The court shall fix punishment as authorized in this chapter in any

case in which . . . [t]he defendant’s guilt is tried by the court.”). In order for one’s jury-trial

right to be abrogated, there must be a showing of a knowing and voluntary waiver made and



       1
         Johns concedes that he is raising this argument for the first time on appeal. The
validity of a jury waiver, however, is an issue that may be raised for the first time on appeal.
See Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992); Moten v. State, 2011 Ark. App.
417.
       2
       Sentencing in Arkansas is entirely a matter of statute. Bunch v. State, supra; State v.
Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993).


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                                 Cite as 2014 Ark. App. 560

demonstrated on the record. Medlock v. State, 328 Ark. 229, 942 S.W.2d 861 (1997); Williams

v. State, 65 Ark. App. 176, 986 S.W.2d 123 (1999). Absent a waiver, it is generally improper

for a circuit court to assess a defendant’s sentence in place of a jury. Davenport v. State, 2013

Ark. 508, at 7, 431 S.W.3d 204, 208 (citing Barnes v. State, 258 Ark. 565, 528 S.W.2d 370

(1975); Redding v. State, 254 Ark. 317, 493 S.W.2d 116 (1973)). In order for a defendant to

waive his right to a jury trial, the circuit court must ensure that the waiver is knowingly,

intelligently, and voluntarily made. Barrow v. State, 2010 Ark. App. 589, 377 S.W.3d 481.

       Rule 31.2 also requires that there must be a verbatim record of any proceedings at

which the defendant waives his right in person or through counsel that must be preserved.

Barrow, supra. Here, the circuit court made a verbatim record of the defendant’s written

waiver. Johns executed a written waiver of his right to jury trial; the waiver form contained

the following language:

              I understand that I have a right to a jury trial where no verdict would be
       accepted unless all twelve jurors agreed. If the jury found me to be guilty of anything,
       I would have the right to have the jury set my punishment.

               I waive my right to have a jury trial. I ask that the judge hear and weight [sic]
       the evidence and, after applying the law, make a decision if I am guilty of anything.
       If the judge finds me guilty, the judge sets my punishment.

              I understand that I keep all of my other rights.

The form was signed by Johns, his defense attorney, the prosecuting attorney, and the judge.

       Moreover, the circuit court made a verbatim record of Johns’s personal waiver of his

right to jury trial in open court, addressing the waiver in the following colloquy at the

omnibus hearing:


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                                Cite as 2014 Ark. App. 560

      COURT:        In Case 12-3853, you are charged at count one with maintaining drug
                    premises. That is a Class C felony which, upon conviction, would carry
                    a punishment ranging from three years to thirty years in the state
                    penitentiary and/or a $10,000 fine.

                    At count two, you’re charged with possession of [a] controlled
                    substance, cocaine, which, upon conviction, would carry a punishment
                    of up to fifteen years in the state penitentiary and/or a $10,000 fine.

                    At count three, you are charged with possession of drug paraphernalia,
                    which, upon conviction, would carry a punishment of ranging up to
                    fifteen years in the state penitentiary and/or a $10,000 fine.

                    Do you understand the charges against you and the punishment range,
                    sir?

      JOHNS:        Yes, sir.

      COURT:        You have the right to a jury trial where no verdict would be accepted
                    unless all twelve jurors agreed. If the jury found you guilty of anything,
                    you would have the right for the jury to set your punishment. By
                    waiving your right to a jury trial, you ask that the judge hear the
                    evidence against you, weigh the evidence, and apply the law to it and
                    determine whether you are guilty of anything or not.

                    If the judge finds you guilty, then the judge will set your punishment.
                    You keep all your other rights. Do you understand that?

      JOHNS:        Yes, sir.

      COURT:        Does the State have any objection to the jury waiver in 2012-3853?

      STATE:        No, Your Honor.

      COURT:        The court finds, Mr. Johns, you have knowingly, voluntarily, and
                    intelligently waived jury trial in Case 12-3853 and the court accepts
                    your jury waiver.

      Despite the verbatim record, Johns argues that his jury waiver was defective because

the written waiver form did not specifically spell out the fact that he was subject to


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sentencing as a habitual offender. Johns acknowledges that a criminal defendant in Arkansas

has neither a federal nor a state constitutional right to be sentenced by a jury. See Bunch,

supra; Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960). However, he likens his right

to be sentenced by a jury as a habitual offender to his right to be sentenced by a jury on a

substantive criminal charge. First, he contends, a habitual-offender charge must be set forth

in the criminal information filed against the defendant. See Finch v. State, 262 Ark. 313, 556

S.W.2d 434 (1977). Second, he asserts that the defendant’s previous convictions, like the

elements of a substantive charge, must be proved by the State beyond a reasonable doubt. See

Ark. Code Ann. § 5-4-504(a) (Supp. 2011). Third, he notes that, as with a substantive

charge, a jury imposes sentence on a habitual offender. See Ark. Code Ann. § 5-4-502(4)

(Supp. 2011). Therefore, Johns argues that a habitual-offender charge is similar enough to

a substantive criminal charge that “a jury-waiver form should reference a habitual-offender

charge with the same degree of specificity used to reference substantive criminal charges.”

The failure to do so, he maintains, results in a jury waiver that is not knowingly, intelligently,

and voluntarily waived. Johns additionally argues that the waiver form and colloquy failed

to apprise him that he would be sentenced by the circuit court as a habitual offender.

       We disagree. As this court noted in Brock v. State, 90 Ark. App. 164, 204 S.W.3d 562

(2005), “a defendant may waive his constitutional rights and consent to judicial factfinding

as to sentence enhancements.” Id. at 172–73, 204 S.W.3d at 567 (citing Blakely v. Washington,

542 U.S. 296 (2004)). Here, the waiver form was signed by Johns, his defense attorney, the

prosecuting attorney, and the judge. The waiver form specifically reflected that Johns was


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waiving his right to be tried by a jury on the substantive charges of maintaining a drug

premises, possession of a controlled substance, and possession of drug paraphernalia. Because

he was waiving his right to be tried by a jury on these charges, he was also waiving his right

to be sentenced by a jury on these charges. For the Class D felonies with which he was

charged, the waiver form provided that Johns was facing sentences of “up to 15 years

ADC.”3 This sentencing range clearly reflects the enhanced sentencing range found in

section 5-4-501(b)(1)(A)(ii). Moreover, in the waiver colloquy, the court directly referenced

the enhanced punishment ranges; it specifically inquired whether Johns had spoken to his

attorney about the jury waiver and understood the punishment ranges; and it ensured that

Johns understood that, if found guilty, he would be sentenced by the court.

       This is not a case, as Johns suggests, where we must presume a waiver from a silent

record. Johns was made aware of the enhanced sentencing ranges, he acknowledged that he

was aware of the possible punishment, and he explicitly agreed to waive a jury in light of all

these factors. Accordingly, we conclude that Johns’s jury waiver was valid, and we affirm his

convictions.

       Affirmed.

       HIXSON and BROWN , JJ., agree.

       Don Thompson, Deputy Public Defender, by: Clint Miller, Deputy Public Defender,
for appellant.
       Dustin McDaniel, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.



       3
       Ordinarily, when an individual is convicted of a Class D felony, the sentence shall
not exceed six years. Ark. Code Ann. § 5-4-401(a)(5) (Supp. 2011).

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