If someone has a residential-burglary conviction from before 2015 and a new violent-felony conviction after April 1, 2015, are they parole-ineligible in Arkansas?
Plain-English summary
Solomon Graves, the Secretary of the Arkansas Department of Corrections, asked the AG a sentencing-administration question. Ark. Code Ann. § 16-93-609 makes someone ineligible for parole if they commit a "violent felony offense" after August 13, 2001, and have a prior conviction for a violent felony offense. In 2015, the legislature added residential burglary to the list of violent felonies (Acts 2015, No. 895). The question: if a person was convicted of residential burglary before April 1, 2015 (the 2015 amendment's effective date), does that prior conviction still count for parole-ineligibility purposes when the person commits a new violent-felony offense after April 1, 2015?
The AG answered yes. The parole-ineligibility provision looks at whether the new offense was committed after August 13, 2001 (and effectively after the 2015 amendment when residential burglary is the predicate), not whether the prior burglary was committed after the 2015 amendment. So a pre-2015 residential burglary still counts. The result: an offender previously convicted of residential burglary who commits another violent felony on or after April 1, 2015, is not eligible for parole.
The AG also flagged the constitutional point: the statute would not raise an ex post facto problem because the offender is sentenced under the law in effect at the time of the new offense, not the old one. The opinion analogized to Handy v. State, 2017 Ark. App. 74, where the Court of Appeals rejected a similar challenge in the habitual-offender context.
What this means for you
Department of Corrections officials and parole board
Apply § 16-93-609(b) by looking at the date of the current violent-felony offense. If that date is on or after April 1, 2015, and the offender has any prior conviction for one of the offenses listed in § 5-4-501(d)(2), including pre-2015 residential burglary convictions, the offender is parole-ineligible. The 2015 amendment's effective date does not gate the prior conviction.
Defense counsel
If your client is being denied parole based on a pre-2015 residential burglary, this opinion shows the AG's view. The AG opinion is persuasive but not binding on a court. The constitutional issue (whether using a pre-2015 burglary as a predicate for parole ineligibility violates the ex post facto clause when the burglary itself was not designated a "violent felony" until 2015) was treated as not raising an issue under Handy. If you want to challenge that conclusion, the litigation path runs through the courts, not through a re-request to the AG.
Prosecutors and sentencing judges
Plea agreements, sentencing recommendations, and sentencing orders should reflect the parole-ineligibility consequences of a current violent-felony charge when there is any prior conviction listed in § 5-4-501(d)(2), even if the prior conviction predates 2015. Defendants and their counsel are entitled to know the parole consequences before pleading.
Inmates with pre-2015 residential-burglary convictions and their families
If the new offense was committed before April 1, 2015, the parole-ineligibility provision does not apply to the new offense by its terms. If the new offense was after April 1, 2015, the AG opinion treats the pre-2015 residential burglary as a qualifying prior. Because parole eligibility involves complex statutory and case-law considerations, consult with a criminal defense attorney about your specific situation.
Common questions
Q: What is "residential burglary" under Arkansas law?
A: Residential burglary is defined at Ark. Code Ann. § 5-39-201(a). The 2015 amendment added it to the list of "felonies involving violence" under § 5-4-501(d)(2)(A)(xi).
Q: What changed in 2015?
A: Acts 2015, No. 895, § 3 took effect April 1, 2015, and added residential burglary to the violent-felony list. Before that change, residential burglary was a felony but was not classified as a "violent felony offense" for the parole-ineligibility statute.
Q: Does this opinion say residential burglary committed before 2015 retroactively becomes a "violent felony"?
A: Not exactly. The statute does not relabel the old conviction. What it does is use the prior conviction as a qualifying predicate for the parole-ineligibility consequence triggered by a new offense committed after April 1, 2015. The AG read § 16-93-609(b)(1) as imposing the consequence based on when the current offense was committed, not when the prior offense was committed.
Q: Doesn't this raise an ex post facto issue?
A: The opinion explicitly addressed it and said no. An offender is "sentenced pursuant to the statute in effect at the time of his or her offense." Since the new offense was committed after April 1, 2015, the offender knew (or was charged with knowing) the consequences before committing it. The opinion cited Handy v. State, 2017 Ark. App. 74, where the Court of Appeals rejected a similar argument in the habitual-offender context (§ 5-4-501(d)(1)).
Q: Does this rule apply to all violent-felony offenses listed in § 5-4-501(d)(2)?
A: The opinion was specifically about residential burglary because that is what the Department asked about. The reasoning, however, would extend to any offense added to the violent-felony list by amendment, as long as the new offense triggering the consequence was committed after the relevant amendment's effective date.
Q: Does this opinion override a sentencing court's finding?
A: No. AG opinions are persuasive guidance, not binding. The Department of Corrections may follow this guidance in its parole administration. If a court reviewing a habeas petition or sentence-correction motion disagrees, the court's ruling controls in that case.
Q: Where can I check the current version of § 16-93-609?
A: The opinion cited the Supp. 2021 codification. Statutes change over time. Verify the current text at the official Arkansas code or through a paid legal-research database before relying on the rule.
Background and statutory framework
Ark. Code Ann. § 16-93-609 is Arkansas's parole-ineligibility statute for repeat violent-felony offenders. Subsection (b)(1) provides that a person who commits a "violent felony offense" after August 13, 2001, and who has previously been found guilty of or pleaded guilty or nolo contendere to any violent felony offense, is not eligible for parole.
Subsection (b)(2) defines "violent felony offense" as those listed in Ark. Code Ann. § 5-4-501(d)(2). Residential burglary is listed at § 5-4-501(d)(2)(A)(xi), having been added by Acts 2015, No. 895, § 3, effective April 1, 2015.
The statute's structure puts the time-of-offense focus on the current offense, not the prior. Once an offender's current offense is a violent felony committed after the relevant date, any prior conviction listed in § 5-4-501(d)(2) qualifies as a predicate. The opinion read this structure as meaning that even pre-2015 residential burglary convictions count when the current offense was committed on or after April 1, 2015.
Handy v. State, 2017 Ark. App. 74, 510 S.W.3d 292, addressed a related but distinct provision: the habitual-offender enhancement at § 5-4-501(d)(1). The Handy court rejected the argument that pre-2015 residential burglaries should not count toward habitual-offender status. The AG used Handy by analogy to confirm that the parole-ineligibility application here would not present constitutional issues.
Citations
- Ark. Code Ann. § 16-93-609 (parole ineligibility for repeat violent felons)
- Ark. Code Ann. § 5-4-501(d)(2)(A)(xi) (residential burglary listed as violent felony)
- Ark. Code Ann. § 5-39-201(a) (residential burglary definition)
- Acts 2015, No. 895, § 3 (effective April 1, 2015; added residential burglary to violent-felony list)
- Handy v. State, 2017 Ark. App. 74, 510 S.W.3d 292 (2017)
Source
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain; the linked official source is authoritative.
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2022-010
May 24, 2022
Mr. Solomon Graves
Secretary, Ark. Dep't of Corrections
1302 Pike Ave, Suite C
North Little Rock, AR 72114
Dear Secretary Graves:
This is in response to your request for my opinion on the following question concerning Ark. Code Ann. § 16-93-609:
For purposes of parole eligibility under Ark. Code Ann. § 16-93-609, is a residential burglary committed before the effective date of Act [895] of 2015 (April [1], 2015) a prior 'violent felony offense' [so that] an offender with a current conviction for a violent felony offense [would be required] to serve 100% of his or her sentence?
RESPONSE
Yes, an offender previously convicted of residential burglary who committed an additional offense on or after April 1, 2015 is not eligible for parole.
DISCUSSION
Section 16-93-609 states in relevant part that any person who commits a violent felony after August 13, 2001, and who has previously been found guilty of a violent felony shall not be eligible for parole:
Any person who commits a violent felony offense . . . subsequent to August 13, 2001, and who has previously been found guilty of or pleaded guilty or nolo contendere to any violent felony offense shall not be eligible for release on parole by the board.
A "violent felony offense" means those offenses listed in Ark. Code Ann. § 5-4-501(d)(2), and "[r]esidential burglary" is among those offenses. Thus, subsection 16-93-609(b)'s parole ineligibility provision applies to a defendant "who has previously been found guilty of or pleaded guilty or nolo contendere to any violent felony offense," including residential burglary.
Granted, residential burglary was not designated as a "felony involving violence" until 2015. But critically for your question, nothing in subsection 16-93-609(b) suggests that to render an offender ineligible for parole after the commission of another violent felony offense, the prior residential burglary must have occurred after 2015. Instead, to be ineligible for parole, an offender must only have committed his or her subsequent offense after the 2015 amendment's effective date. Thus, as relevant here, if the offender in question committed the crime for which he or she is currently serving a sentence after April 1, 2015, a prior conviction for residential burglary would render the offender ineligible for parole.
[Footnote: Nor for that matter would the application of the statute to offenders who committed an additional offense after April 1, 2015, present any constitutional issues since an offender would be sentenced pursuant to the statute in effect at the time of his or her offense. See Handy v. State, 2017 Ark. App. 74, *7-8, 510 S.W.3d 292, 297 (2017) (rejecting the argument that none of the offender's pre-2015 felony residential burglaries should have counted toward his habitual-offender status under Ark. Code Ann. § 5-4-501(d)(1)).]
Sincerely,
LESLIE RUTLEDGE
Attorney General