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Banks v. State10/16/2003
viction of Appellant for domestic battering in the third degree. The State also introduced evidence of Appellant's prior felony conviction for aggravated assault against a family member and a felony conviction for aggravated assault. The jury then sentenced Appellant to a term of twelve years' imprisonment. This appeal followed.
Appellant's sole argument on appeal is that the trial court erred by imposing an illegal sentence. He bases this argument on the contention that the proof adduced at trial supported a conviction for a misdemeanor charge of domestic battering in the third degree, not a felony charge. He urges that the State was required to introduce evidence of his prior offense of domestic battering during the guilt phase of his trial, as he claims the prior offense is a substantive element of the felony charge of third-degree domestic battering, second offense. Thus, according to Appellant, because he was given an illegal sentence, this issue may not be waived by the parties and may be raised for the first time on appeal. We do not agree with Appellant on this point.
It is true that this court has held allegations of a void or illegal sentence constitute an issue of subject-matter jurisdiction and, as such, cannot be waived by the parties and may be addressed for the first time on appeal. Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002). In the instant case, however, we do not agree that the issue raised by Appellant is one of an illegal sentence; rather, Appellant's argument amounts to a challenge of the appropriateness of the introduction of his prior offenses during the sentencing phase of the trial, as opposed to introducing them during the guilt phase of the trial. In other words, Appellant claims that he was tried and convicted of a misdemeanor, because the State failed to prove the second- offense element of the felony charge during the guilt phase. It is apparent that Appellant has chosen to couch his argument in terms of an illegal sentence, because the issue is not preserved for our review.
Immediately prior to the commencement of this trial, a discussion took place between the trial court and both attorneys. There appeared to be confusion as to whether the State was required to introduce evidence of Appellant's prior misdemeanor conviction in order to prove that this was his second offense. The following colloquy then took place:
The Court: How many priors does he have?
Mr. Sipe: He's got two prior aggravated assaults he's on probation for in this court, and they're aggravated assaults against family or household members.
The Court: Those are the two you're referring to?
Mr. Sipe: The two I'm referring to. And then there's also a misdemeanor.
The Court: Well, you know, in the information, we've got to talk about it because you've got to prove it.
Mr. Sipe: Well, -
The Court: How are you going to do that? You've got to prove this is a second offense.
Mr. Sipe: We can - the way I've got a jury instruction - I can show you the jury instruction if you want to see it. The way I have the jury instruction written up is, they first go back and they find him guilty or innocent of domestic battery, third degree. So I'm not sure that the Court -
The Court: Wait a minute.
Mr. Sipe: - would have to mention second offense.
The Court: Wait a minute. How can they do that if you haven't proved it? Domestic battery, third, is based upon a prior offense.
Mr. Sipe: Well, that's the - it's a sentencing enhancement is what we would say it was. We still have to prove a domestic battery, third. We're alleging t
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