Pedraza v. State

Cite as 2015 Ark. App. 205

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-14-178

Opinion Delivered April 1, 2015

VICTORIA PEDRAZA APPEAL FROM THE DREW
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-2012-37-3B]
V.
HONORABLE ROBERT BYNUM
STATE OF ARKANSAS GIBSON, JR., JUDGE
APPELLEE
AFFIRMED

BRANDON J. HARRISON, Judge

Victoria Pedraza pled guilty to permitting abuse of a minor and was sentenced. She

now appeals, arguing that the circuit judge erred by (1) requiring her to register as a sex

offender, (2) engaging in inappropriate conduct during her sentencing trial, and (3) not

disqualifying himself from presiding over her sentencing trial. We affirm.

Because Pedraza is not challenging the sufficiency of the evidence, only a brief

recitation of the facts is necessary. Pedraza and her husband, Daniel, were charged with

capital murder and permitting abuse after Pedraza’s two-year-old daughter died as a result

of multiple blunt-force injuries.1 Victoria Pedraza later pled guilty to permitting abuse of

a minor and agreed to testify against her husband. A jury sentenced Pedraza to twenty

years’ imprisonment for permitting abuse, and an order to this effect was entered in July

2013. This appeal followed.

1
Daniel Pedraza was the child’s stepfather.
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I. Sex-Offender Registration

At sentencing, there was some discussion of whether Pedraza was required to

register as a sex offender or whether the circuit court had discretion in the matter; the

court asked the parties to brief the issue. The State filed a brief explaining that the crime

to which Pedraza pled guilty, permitting abuse of a minor, is defined as a sex offense in

Ark. Code Ann. § 12-12-903(12)(A)(i)(s) (Supp. 2013); that the registration requirement

applies to those adjudicated guilty of a sex offense after August 1, 1997; and that,

according to § 12-12-906(a)(1)(A)(i), the sentencing court “shall enter on the judgment

and commitment or judgment and disposition form that the offender is required to register

as a sex offender[.]” In a letter to the parties, the court agreed with the State and

concluded that it “lacked the discretion to decide” whether Pedraza should be registered

as a sex offender.

Two days later, Pedraza filed a motion to prevent the judgment from requiring her

registration as a sex offender; in the accompanying brief, she argued that § 12-12-903 was

vague and overbroad because it “does not specify that only those defendants that commit

crimes involving sex . . . need to register.” She argued that because all “crimes” under §

5-27-221 trigger the requirement to register as a sex offender, the sex-offender registration

statute was over-inclusive, improper, and violated her constitutional rights.2

2
Under Ark. Code Ann. § 5-27-221(c)(1) (Repl. 2013), permitting abuse of a minor is a
Class B felony if the abuse consisted of sexual intercourse, deviate sexual activity, or
caused serious physical injury or death to the minor.
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In a letter opinion dated July 24, the court denied Pedraza’s motion, explaining

that the statute was “explicit” that permitting abuse of a minor is a sex offense and that

sex-offender registration was mandatory. On 20 August 2013, the court entered an order

denying Pedraza’s motion “as indicated in the letter from the Court dated July 24, 2013,”

and the sentencing order reflects that she was adjudicated guilty of an offense requiring

sex-offender registration.

On appeal, Pedraza argues that the Sex Offender Registration Act is ambiguous

because it “was intended to protect the public from ‘sex abuse’ and thus by the common

language of the statute, the registration requirement does not, and should not[,] apply to

Appellant.” She argues that the circuit court should have exercised discretion in deciding

whether to make her register as a sex offender. She also argues that § 12-12-

903(12)(A)(i)(s) is unconstitutionally vague, overbroad, and violates her rights to due

process, equal protection, and privacy.

First, we note that Pedraza’s arguments on due process, equal protection, and

privacy are raised for the first time on appeal. Issues raised for the first time on appeal,

even constitutional ones, are not considered because the circuit court never had an

opportunity to rule on them. London v. State, 354 Ark. 313, 125 S.W.3d 813 (2003).

Pedraza did argue below that the statute is vague and overbroad, but she failed to obtain a

ruling from the circuit court on these arguments. An appellant must obtain a ruling on an

argument to preserve the matter for this court’s review. Wallace v. State, 2009 Ark. 90,

302 S.W.3d 580.

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This leaves us with the argument that the statute is ambiguous and that the court

should have exercised its discretion in requiring her to register as a sex offender. We

review issues of statutory construction de novo. Johnson v. Dawson, 2010 Ark. 308, 365

S.W.3d 913. This means that we are not bound by the circuit court’s decision, but in the

absence of a showing that the circuit court erred in its interpretation of the law, that

interpretation will be accepted as correct on appeal. Id. The basic rule in considering the

meaning and effect of a statute is to construe it just as it reads, giving the words the

ordinary and usually accepted meaning in common language. Id. When the language is

plain and unambiguous, we will not resort to rules of statutory construction, and the

analysis stops. Id. When a statute is ambiguous, however, we must interpret it according

to the legislative intent, and our review becomes an examination of the whole act. Id.

In this case, we hold that the statute is plain and unambiguous. Permitting abuse of

a minor is listed as a sex offense under § 12-12-903(12)(A)(i), and the registration

requirement unambiguously applies to those persons, like Pedraza, who are adjudicated

guilty of a sex offense on or after August 1, 1997. Ark. Code Ann. § 12-12-905(a)(1).

Therefore, the circuit court did not err in finding that it lacked discretion to order Pedraza

to register as a sex offender. The court had no choice but to do so pursuant to the

governing law. We also note that, while the subchapter at issue is commonly referred to

as the “Sex Offender Registration Act,” see Ark. Code Ann. § 12-12-901, it was intended

to establish a system of registration “for sexually violent predators and sex and child

offenders.” See Act of April 1, 1997, No. 1061, 1997 Ark. Acts 989 (emphasis added). So

Pedraza is incorrect that the statute was intended to protect the public only from sex

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offenders. And finally, a concurring supreme court justice has previously addressed the

issue raised by Pedraza, but the General Assembly has not amended the statute. See

Sullivan v. State, 2012 Ark. 74, 386 S.W.3d 507 (Brown, J., concurring) (noting that the

circuit court was required to register Sullivan as a sex offender but expressing concern that

a person who has been convicted of permitting physical abuse, not sexual abuse, was

required to register as a sex offender). The legislature is presumed to be familiar with the

appellate courts’ interpretation of its statutes, and it can amend a statute if it disagrees with

those interpretations; absent such an amendment, the interpretation of the statute remains

the law. Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997). We affirm the circuit

court’s requirement that Pedraza register as a sex offender.

II. Inappropriate Conduct

Pedraza contends that the circuit court erred by conducting its own investigation,

questioning witnesses, making objections, and commenting on the evidence throughout

the sentencing trial. As an example, she cites the court’s order that it be provided a copy

of the State’s discovery file, to which she filed a request for rescission.3 She argues that the

jury was influenced by the court’s “palpable bias against her” and cites several cases in

which this court or the supreme court reversed due to the circuit court’s improper actions.

Finally, Pedraza claims that the court erred by basing its evidentiary rulings on its own

investigation as well as evidence from Daniel Pedraza’s murder trial.

In response, the State notes that in the cases cited by Pedraza, contemporaneous

objections to the court’s actions were made, but in this case, Pedraza made no

3
This request was summarily denied, and Pedraza requested no further relief.
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contemporaneous objections to the court’s statements, did not move the circuit judge to

recuse, and did not request a mistrial. According to the State, Pedraza makes a conclusory

argument “that the trial court engaged in improper conduct and based on that reason

alone, the sentence should be reversed, despite the fact that the issue was never raised

below, and despite the absence of evidence that the alleged improper conduct was

prejudicial.”

While defense counsel did mention to the court a few times that it was

commenting on the evidence, he did not make any formal objections, request a mistrial,

or propose a curative instruction. Having reviewed the lengthy record, we note that most

of the judge’s remarks that Pedraza complains about were made out of the hearing of the

jury, and none of the comments were so egregious as to warrant reversal. It is accurate to

state that the circuit court took an active superintending role in this child-death case. But

in the context of the entire case, we are not persuaded that the court committed reversible

error. Finally, Pedraza fails to mention that the court gave its own curative instruction as

part of the jury instructions: “I’ve not intended by anything I’ve said or done, or by any

questions that I may have asked to intimate or suggest what you should find to be the

facts, or that I believe or disbelieve any witness who testified. If anything I have done or

said has seemed to so indicate, you will disregard it.” This instruction cuts against any

argument that Pedraza was prejudiced by the court’s actions. Therefore, we hold that

Pedraza has demonstrated no reversible error on this point.

III. Disqualification

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Pedraza argues that the circuit judge should have disqualified himself from presiding

over her sentencing trial. Rule 2.11 of the Arkansas Code of Judicial Conduct provides

that a judge must disqualify himself in any proceeding in which the judge’s impartiality

might be reasonably questioned, including when the judge has a personal bias or prejudice

concerning a party or a party’s lawyer. A circuit judge is presumed to be impartial, and a

party seeking disqualification bears a substantial burden to prove otherwise. Deere v. State,

59 Ark. App. 174, 954 S.W.2d 943 (1997). A circuit court’s decision to recuse is within

its discretion, and we will not reverse absent a showing of an abuse of discretion. Carmical

v. McAfee, 68 Ark. App. 313, 7 S.W.3d 350 (1999). The mere fact of adverse rulings is

not enough to demonstrate bias. Id.

Victoria Pedraza argues that the circuit judge should have recused because he was

biased against her, as evidenced by the judge’s actions throughout the trial and, in

particular, by statements in the order denying Daniel Pedraza’s motion to recuse, which

was filed under seal until February 2014. She argues here that the judge’s “attitude, facial

expressions and comments” contributed to her receiving the maximum sentence of twenty

years’ imprisonment and that the judge should have recused on his own motion.

The State argues that Pedraza failed to preserve this issue for appeal because she did

not file a motion to recuse. The State also contends that the instances of alleged bias

Pedraza points to do not establish that the court’s conduct “impugned the weight of the

evidence or the credibility of the witnesses.” Even assuming Pedraza preserved the

judicial-bias issue, she has not shown that the judge’s remarks demanded a recusal.

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We affirm. Pedraza did not move the court to recuse based on its actions during

the sentencing trial, of which she was certainly aware. As for the court’s order denying

the motion to recuse in Daniel’s trial, we fail to see any biased remarks toward Victoria

Pedraza in that order.

Affirmed.

WHITEAKER and VAUGHT, JJ., agree.

Janice W. Vaughn, Arkansas Public Defender Commission, for appellant.

Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.

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