Opinion
No. CACR12-505
02-20-2013
BRENT DAN COTTA APPELLANT v. STATE OF ARKANSAS APPELLEE
Jeffrey Weber, for appellant. Dustin McDaniel, Att'y Gen., by:
APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. CR2011-262]
HONORABLE JAMES O. COX, JUDGE
AFFIRMED
PHILLIP T. WHITEAKER , Judge
Appellant Brent Cotta contends on appeal that the circuit court erred in revoking his suspended imposition of sentence (SIS) because the State failed to introduce evidence of the terms and conditions of his SIS. Because his argument is not preserved for appellate review, we affirm.
Cotta entered a plea of guilty to one count of third-degree domestic battery on March 28, 2011, and he was sentenced to sixty months' SIS. The terms of his suspended sentence required that he not violate any federal, state, or municipal law; pay a fine of $1000, costs of $150, and a fee of $100; and have no contact with Cassie Hardy, the victim of his domestic battery. On January 4, 2012, the State filed a petition to revoke Cotta's SIS, alleging that he had committed the offense of first-degree murder; the petition additionally alleged that Cotta had failed to pay his fine, court costs, and fees as ordered.
At the revocation hearing, the State introduced a fines-and-cost ledger showing that Cotta had made two $50 payments toward his fine, costs, and fees, with an outstanding balance of $1225. Additional testimony showed that Cotta had married Cassie Hardy, who was reported missing on December 31, 2011. The Fort Smith Police Department developed Cotta as a suspect in Cassie's disappearance, and he eventually led police to her body. Cotta explained to the police that he and Cassie had gotten into an argument, he hit her in the throat, and she fell to the ground. The medical examiner's report concluded that the cause of Cassie's death was strangulation. At the conclusion of the hearing, the circuit court found that Cotta had paid only $100 and thus had not paid as ordered, but the lack of payment "pales in comparison" to the fact that Cotta committed a homicide. The court accordingly found that the State had proved by a preponderance of the evidence that Cotta had violated the terms and conditions of his suspended sentence and sentenced him to six years in the Arkansas Department of Correction.
Cotta argues that the circuit court erred in revoking his SIS because the State failed to introduce the terms and conditions of his suspended sentence into evidence. He notes that the State introduced a fines ledger. He contends, however, that the ledger did not indicate the terms and conditions of his suspended sentence. Thus, Cotta contends that there was no evidence to show that he was subject to any condition at the time the murder was committed.
We decline to address Cotta's argument because he has raised it for the first time on appeal, and it is not preserved for appellate review. Cotta couches his argument as a challenge to the sufficiency of the evidence. A challenge to the sufficiency of the evidence may be raised for the first time in an appeal of a revocation in the absence of a motion for directed verdict. See Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). The State's failure to introduce a copy of the terms and conditions of a suspended sentence, however, is a procedural objection that must be raised before the circuit court. Whitener v. State, 96 Ark. App. 354, 241 S.W.3d 779 (2006).
The appellant in Whitener argued that the State failed to introduce the terms and conditions of her probation into evidence. Therefore, the appellant argued, the trial court had no knowledge of the terms and thus no legal basis for finding a violation. As here, the appellant contended that the challenge went to the sufficiency of the evidence and could be raised for the first time on appeal. This court rejected her argument, writing as follows:
Appellant's argument ignores the long-recognized presumption that every person is presumed to know the law, whether civil or criminal. Indeed, a higher duty of compliance rests on those whose responsibility it is to enforce the law than on the general populace. Because our statutory law requires that every probationary sentence contain the condition that the probationer not violate the law, and because everyone is presumed to know the law, it was not necessary for the State to introduce into evidence the probationary condition that appellant not violate the law. . . . Appellant's argument that the terms and conditions of probation were not introduced into evidence amounts to a procedural objection, and appellant did not raise this issue at the revocation hearing. This court will not consider issues raised for the first time on appeal.Whitener, 96 Ark. App. at 357, 241 S.W.3d at 782 (internal citations omitted). See also Costes v. State, 103 Ark. App. 171, 287 S.W.3d 639 (2008) ("Whether there is proof that a probationer received written conditions of probation is a procedural matter, and not one of the sufficiency of the evidence, because the purpose of providing the conditions in writing is to prevent confusion on the probationer's part.").
Cotta never objected to the State's failure to introduce the terms and conditions of his suspended sentence before the trial court. Under Whitener and Costes, Cotta's argument is not preserved for appeal.
Affirmed.
GRUBER, J., agrees.
PITTMAN, J., concurs.
Jeffrey Weber, for appellant.
Dustin McDaniel, Att'y Gen., by: Laura Shue, Ass't Att'y Gen., for appellee.