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.

In a footnote, the AG said applying the statute to a subsequent offense committed after April 1, 2015 would not present constitutional issues because the offender is sentenced under the law in effect at the time of that offense. She cited Handy v. State, 2017 Ark. App. 74, which considered pre-2015 residential burglaries under the habitual-offender provision.

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 explains the AG's view of the statute for a subsequent offense committed after the 2015 amendment. Check the date and type of the later offense before applying its answer. The opinion's constitutional discussion is confined to a footnote citing Handy.

Prosecutors and sentencing judges

When assessing a subsequent violent-felony offense after the 2015 amendment, account for a prior residential-burglary conviction even if it predates April 1, 2015. The opinion says the prior burglary's date does not exclude it from § 16-93-609(b) in that situation.

Inmates with pre-2015 residential-burglary convictions and their families

This opinion addresses a new violent felony committed after the 2015 amendment took effect, with an earlier residential-burglary conviction as the prior offense. It does not decide parole eligibility for a new offense committed before April 1, 2015. The statute quoted in the opinion separately refers to violent felonies committed after August 13, 2001, so the 2015 date is not a blanket cutoff for every repeat-violent-felony case. Ask a criminal defense attorney to review the offenses, dates, and applicable law in your case.

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: Why can an earlier residential-burglary conviction count?
A: The Attorney General found nothing in § 16-93-609(b) requiring the prior burglary to have occurred after 2015. For the situation asked about, she focused on the date of the subsequent violent felony, after the amendment took effect.

Q: Doesn't this raise an ex post facto issue?
A: In a footnote, the Attorney General said applying the statute to an offender who committed an additional offense after April 1, 2015 would not present constitutional issues because sentencing follows the law in effect at the time of that offense. She cited Handy v. State, which addressed pre-2015 burglaries under the habitual-offender provision.

Q: Does the opinion decide whether a different prior conviction counts?
A: No. The Department asked about residential burglary committed before the 2015 amendment. The opinion quotes the statute's cross-reference to the offenses listed in § 5-4-501(d)(2), but does not analyze a different prior offense.

Q: Does this opinion decide a particular person's parole eligibility?
A: No. It answers the Department of Corrections' statutory question about an earlier residential burglary and a subsequent violent felony committed after the 2015 amendment. A person's actual eligibility depends on the relevant convictions and offense dates.

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

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

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.

Sincerely,

LESLIE RUTLEDGE
Attorney General

1 Ark. Code Ann. § 16-93-609(b)(1) (Supp. 2021).

2 Id. at § 16-93-609(b)(2) (“As used in this subsection, ‘a violent felony offense’ ... means those offenses listed in § 5-4-501(d)(2).”).

3 Ark. Code Ann. § 5-4-501(d)(2)(A)(xi) (Supp. 2021).

4 See Acts 2015, No. 895, § 3 (effective April 1, 2015, adding “residential burglary, § 5-39-201(a)” as a “felony involving violence” under Ark. Code Ann. § 5-4-501(d)(2)).

5 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)).