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Banks v. State10/16/2003
rior DWI conviction must be given the status of an element of a subsequent DWI offense because eventually, upon the fourth DWI conviction, the crime charged will change from a misdemeanor to a felony. As stated in Peters, the proof of the prior DWI conviction or convictions must come in the punishment phase of a bifurcated trial to protect a defendant from possible prejudice during the guilt phase. Bifurcated proceedings also ensure the protection of a defendant's right to counsel in the prior convictions.
The rationale underlying the multiple offenses in the context of DWI cases can certainly be extended to cases involving multiple domestic batterings. Thus, even though the prior offense is an element that must be proven, it is an element properly proven during the sentencing phase of a bifurcated proceeding, which is precisely what occurred in the instant case. See also Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985) (holding that the existence of three prior convictions for driving while intoxicated is an element of the felony DWI fourth offense to be proven in the sentencing phase of a bifurcated trial); State v. Sola, 354 Ark. ___, ___ S.W.3d ___ (September 18, 2003) (stating that the State need not prove a defendant's three other DWI offenses in order to determine his guilt on the charge of DWI, fourth offense).
Despite the fact that we do not agree with Appellant on his argument raised in the present appeal, we do note that Appellant's sentence is indeed an illegal one. In this case, the evidence demonstrates that Appellant was convicted of the Class D felony of domestic battering in the third degree, second offense. The maximum penalty allowed for a Class D felony is a term of six years' imprisonment. Here, however, Appellant was sentenced to a term of twelve years' imprisonment after the jury was instructed as follows:
You have found Darryl Banks guilty of the offense of domestic battery in the third degree. It is my duty to instruct you that Darryl Banks has a prior battery conviction against a family or household member. It is also my duty to instruct you that Darryl Banks has two prior felony convictions and is classified as a habitual offender.
The offense of domestic battery in the third degree, when committed by a habitual offender who has previously committed a prior offense of domestic battering, is punishable by imprisonment in the Arkansas Department of Correction for a term of not more than 12 years.
Thus, under this non-model jury instruction, Appellant's six-year sentence was enhanced pursuant to the habitual offender statute, codified at Ark. Code Ann. § 5-4-501 (Supp. 2001). That statute provides in relevant part:
(a)(1) A defendant meeting the following criteria may be sentenced to an extended term of imprisonment as set forth in subdivision (a)(2) of this section:
(A) A defendant who is convicted of a felony other than those enumerated in subsections (c) and (d) of this section committed after June 30, 1993, and who has previously been convicted of more than one (1) but fewer than four (4) felonies or who has been found guilty of more than one (1) but fewer than four (4) felonies;
(2) The extended terms of imprisonment for the defendants described in subdivision (a)(1) of this section are as follows:
(E) For a conviction of a Class D felony, a term of not more than twelve (12) years[.]
This enhancement under the habitual offender provision resulted in an illegal sentence of twelve years' imprisonment being imposed on Appellant.
A similar situation occurred in Lawson v. State, 295 Ark. 37, 746 S.W.2d 544 (1988). At issue in that case was w
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