by Sagi Schwartzberg

The Supreme Court of Arkansas, in two companion cases, held that there was no designation in Appellant’s sentencing order to § 16-93-609 of the Arkansas Code Annotated (“ACA”), and thus, he was entitled to have his parole eligibility recalculated under Act 683.

Background

Perry Wright and Torry Rodgers were convicted of residential burglary in 2006 and 2008, respectively. At the time of their convictions, residential burglary was not considered to be a violent felony offense. Effective April 1, 2015, the Arkansas Legislature added residential burglary to the list of enumerated offenses that qualify as a violent felony offense via Act 895. Following the passage of Act 895, the Arkansas Department of Corrections (“ADOC”) interpreted this change in the classification as applicable to only residential burglaries committed after April 1, 2015, for purposes of parole eligibility.

Wright and Rodgers were subsequently convicted of aggravated robbery (with other convictions for Rodgers not relevant here) in two separate cases via plea agreements in 2020 and 2018, respectively.

Both Wright and Rodgers were therefore sentenced under the career offender statute ACA § 16-93-609(b)(2)(B) to 12 years of imprisonment. At the time of their respective sentences, each plea agreement provided that each of them would serve 100% (or “flat time”) on the aggravated robbery sentence.

On May 24, 2022, the Arkansas Attorney General was asked by the ADOC to determine “whether a residential burglary committed before April 1, 2015 constituted a prior ‘violent felony offense’ so that an offender convicted of a subsequent violent felony offense would be required to serve 100 percent of his or her sentence.” Op. Ark. Att’y Gen. 010 (2022). The Attorney General determined that the ADOC’s interpretation of Act 895 was inconsistent with the law. Id. Accordingly, the ADOC abandoned its interpretation of Act 895 and recalculated the parole eligibility dates for offenders impacted by the new interpretation.

In 2023, the Legislature amended § 16-93-609 regarding the parole eligibility in connection with prior residential burglaries. Specifically, § 16-93-609(b)(2)(B) was amended to clarify that “[u]nless the sentencing order expressly designates that the defendant was sentenced under this section, ‘[a] violent felony offense’ does not include residential burglary … committed before April 1, 2015, unless the defendant was sentenced on or after May 24, 2022.” ACA § 16-93-609(b)(2)(B); see also Act 683 (2023).

In November 2023, Wright and Rodgers both filed petitions to have their parole eligibility dates recalculated in light of Act 683 and the amendments codified in § 16-93-609(b)(2)(B). They argued that their sentencing orders did not “expressly designate” that they were sentenced under § 16-93-609, as was required. In response to their petitions, Respondents filed responses with copies of Wright’s and Rodgers’ respective plea agreements.

Subsequently, during the parties’ motions for judgment on the pleadings and summary judgment motions, Respondents also filed portions of the sentencing transcripts of both cases, wherein both Wright and Rodgers affirmed their understanding that they would each serve 100% of their respective sentences.

Following separate hearings, the trial courts denied both petitions, denied their motions for judgment on the pleadings, and granted Respondents’ motions for summary judgment. Wright and Rodgers both timely appealed.

Analysis

The issue on appeal was whether the circuit courts erred in finding that Act 683 did not apply to Wright and Rodgers and did not apply retroactively. In the alternative, both Wright and Rodgers argued that the circuit courts also erred in considering extraneous evidence outside of the pleadings during their respective hearings. Because the two cases were nearly identical, the Court deemed the cases as companion cases and issued its main opinion in Rodgers’ case.

In fact, the Court’s opinion issued in Wright’s case incorporated by reference its analysis from the Rodgers’ opinion. See Wright v. Ark. Post-Prison Transfer Bd., 700 S.W.3d 724 (Ark. 2024). The Court determined that the issues on appeal are to be reviewed under the de novo standard “as it is for th[e] Court to determine the meaning of a statute.” It then explained that the “basic rule of statutory construction is to give effect to the intent of the legislature by giving words their usual and ordinary meaning … when a statute is clear, it is given its plain meaning, and [the Court] will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used.” Thurston v. Safe Surgery Ark., 619 S.W.3d 1 (Ark. 2021).

The Court noted that if the language of a statute is plain and unambiguous, its analysis needs to go no further. The Court recognized that the primary disagreement between the parties was whether the notation on the plea agreements that Wright and Rodgers will “serve flat time” or “100 percent” constitutes an express designation for purposes of § 16-93-609(b)(2)(B). Therefore, in applying the ordinary definitions of “express” and “designate,” the Court concluded that the notations that “DEF WILL SERVE 100% ON - AGG ROBBERY” does not constitute a direct citation to § 16-93-609. The Court further concluded that the language of the statute “unequivocally limit[ed its] review to [the] sentencing order alone as opposed to taking [the] plea agreement, plea hearing, or any other evidence into consideration.”

In addressing Appellees’ argument that the Court’s conclusion leads to absurd results, the Court stated that “it is undisputed that appropriate treatment of residential burglaries committed prior to [April 1, 2015] was uncertain for purposes of calculating parole eligibility until the General Assembly enacted Act 683.” The Court was unpersuaded by the argument that the uncodified legislative findings and intent underlying Act 683 did “not create a right to a resentencing proceeding, a new trial, other remedy, or cause of action that did not exist before the effective date of [the] Act” and concluded that the language of § 16-93-609 “is so plain that judicial construction is limited to what the statute itself provides.”

The Court was also not persuaded by the argument that this issue could be resolved by correcting the sentencing order nunc pro tunc, as it was not clear from the record that the absence of an express reference to § 16-93-609 was simply a clerical error as set forth in Rule 60(b) of the Arkansas Rule of Civil Procedure.

Conclusion

The Court held that the circuit court erred in its interpretation of ACA § 16-93-609(b)(2)(B) and erred in admitting the plea agreement and transcripts of the plea hearings into evidence. Accordingly, the Court reversed and remanded the circuit court’s judgment. See: Rodgers v. Ark. Parole Bd., 700 S.W.3d 876 (Ark. 2024).  

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