Does a 1998 conviction for sexual abuse trigger Arkansas's 'no parole' rule for someone who committed aggravated robbery in 2014, after the older offense was struck from the violent-felony list?

Plain-English summary

The Arkansas Department of Corrections asked whether a prior conviction for sexual abuse in the first degree still triggers the repeat-offender no-parole rule when a later offense was committed after that crime was removed from the statutory list. The example was a 1998 sexual-abuse conviction followed by an aggravated robbery committed in 2014. The AG answered no under A.C.A. § 16-93-609(b).

The AG said parole eligibility depends on the law in effect when the later crime was committed. By 2014, sexual abuse in the first degree had been removed from the offenses listed in A.C.A. § 5-4-501(d)(2). The statute allows comparison to an offense from another jurisdiction, but does not extend that comparison to a different Arkansas offense. The AG acknowledged that the General Assembly might not have intended this result when it removed an “obsolete reference,” but he found the statutory language unambiguous.

The second question concerned a first-degree murder conviction from before the 1987 Arkansas Code recodification. The AG answered that it remains a qualifying prior violent felony. He distinguished recodification of the same law from repeal and replacement of sexual-abuse crimes with different sexual-assault crimes.

What this means for you

Corrections officials and people affected by parole calculations

For the first example, the relevant list is the one in effect when the later aggravated robbery was committed. The AG concluded that the prior sexual-abuse conviction does not make the offender ineligible for parole under § 16-93-609(b). The opinion does not calculate a particular person's release date or decide whether a particular corrections decision was wrong.

Courts and lawyers

For the second example, recodification in 1987 did not turn a first-degree murder conviction into a different crime. The AG treats the older conviction as a qualifying prior offense. Footnote 9 describes two earlier cases involving sexual-abuse convictions but says neither decided the issue presented here.

Common questions

Does a prior sexual-abuse conviction count when the later crime occurred after the offense left the statutory list? In the scenario the AG addressed, no. The later aggravated robbery was committed in 2014, after the 2007 removal, so the prior conviction did not trigger § 16-93-609(b).

Does a first-degree murder conviction from before the 1987 Code count? Yes. The AG said recodification did not change the underlying law, so the conviction remains a qualifying prior violent felony.

Did the opinion find that the Department of Corrections miscalculated anyone's sentence? No. Footnote 9 recounts a claim of erroneous application in a prior case, but says that case did not rule on the merits. The opinion answers the legal questions posed by the secretary.

Background and statutory framework

A.C.A. § 16-93-609(b) refers to the offense list in § 5-4-501(d)(2). The AG cites Arkansas Supreme Court decisions for the rule that parole eligibility is governed by law in effect when the later crime was committed. He contrasts the 2007 removal of sexual abuse in the first degree from the list with a crime that remained the same through the 1987 recodification. Footnote 13 describes later changes under Act 659 of 2023; this opinion applies the law governing the examples it was asked about.

Citations

• A.C.A. § 16-93-609(b); § 5-4-501(d)(2)
• Acts 2007, No. 827, § 15
• Pitts v. Hobbs, 2013 Ark. 457
• Johnson v. State, 2018 Ark. 42, 538 S.W.3d 819
• Wooten v. State, 2016 Ark. 376, 502 S.W.3d 503

Source

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

Original opinion text

TIM GRIFFIN
ATTORNEY GENERAL

Opinion No. 2023-066

September 29, 2023

The Honorable Joe Profiri
Secretary of Corrections
Arkansas Department of Corrections
1302 Pike Avenue, Suite C
North Little Rock, Arkansas 72114

Dear Secretary Profiri:
I am writing in response to your request for my opinion on two questions relating to parole eligibility.

In Act 1805 of 2001, the General Assembly amended the law governing parole eligibility to prohibit parole for offenders repeatedly convicted of a “violent felony offense or any felony sex offense.” A list of crimes meeting that definition is found in A.C.A.
§ 5-4-501(d)(2).

The General Assembly also passed Act 1738 of 2001, which repealed several sex offenses, including sexual abuse in the first degree, and replaced them with the sexual-assault offenses found at A.C.A. §§ 5-14-124 to -127.

Before the 2001 legislative session, sexual abuse in the first degree had been listed among
§ 5-4-501(d)(2)’s violent felonies. It remained on this list until 2007, when it was removed as part of a technical corrections bill for being “obsolete.” Two of Act 1738’s newly created sexual-assault crimes, sexual assault in the first degree and sexual assault in the second degree, were added to § 5-4-501(d)(2)’s list of felonies in 2003.

Against this background, you ask the following questions:

1. Does an offender with a prior conviction for A.C.A. § 5-14-108, sexual abuse in
  the first degree, fall under the “no parole” provisions of A.C.A. § 16-93-609(b) if
  his or her subsequent offense was committed on or after the effective date of Act
  827 of 2007, which struck the provision from the list of “felonies involving
  violence”? For example, if an inmate has a conviction for sexual abuse in the first
  degree from 1998, and then was subsequently convicted of an aggravated robbery
  committed in 2014, at which point sexual abuse in the first degree was not an
  enumerated felony involving violence, is the inmate required to serve 100% of his
  or her sentence for the aggravated robbery?

                         323 CENTER STREET, SU ITE 200
                         LITTLE ROCK, ARKANSAS 72201

The Honorable Joe Profiri
Secretary of Corrections
Opinion No. 2023-066
Page 2

       Brief answer: No, an offender who was previously convicted of sexual abuse in
                     the first degree and later convicted of another enumerated felony
                     committed after the effective date of Act 827 of 2007 would not be
                     required to serve 100% of his or her sentence under A.C.A.
                     § 16-93-609(b).

    2. If not, does this also apply to criminal offenses which were re-codified as part of
     the 1987 revision of Arkansas law, or is it a distinguishing factor that these offenses
     were re-codified instead of repealed and a new offense created, as is the case with
     sexual abuse and sexual assault? For example, does a conviction for murder in the
     first degree committed prior to the 1987 recodification of Arkansas law qualify as
     a prior felony involving violence?

       Brief answer: A conviction for murder in the first degree would qualify as a prior
                     violent felony offense for purposes of parole eligibility, regardless
                     of whether the crime was committed before or after the creation of
                     the 1987 Arkansas Code.

DISCUSSION

Question 1: Does an offender with a prior conviction for A.C.A. § 5-14-108, sexual abuse in the first degree, fall under the “no parole” provisions of A.C.A. § 16-93-609(b) if his or her subsequent offense was committed on or after the effective date of Act 827 of 2007, which struck the provision from the list of “felonies” involving violence? For example, if an inmate has a conviction for sexual abuse in the first degree from 1998, and then was subsequently convicted of an aggravated robbery committed in 2014, at which point sexual abuse in the first degree was not an enumerated felony involving violence, is the inmate required to serve 100% of his or her sentence for the aggravated robbery?

Under A.C.A. § 16-93-609(b)(1), a person is not eligible for release on parole if, after August 13, 2001, he or she commits a violent felony offense or felony sex offense and has previously been convicted of another violent felony offense or felony sex offense. The statute defines “a violent felony offense or any felony sex offense” as those offenses listed in A.C.A. § 5-4-501(d)(2).1 While sexual abuse in the first degree was, at one time, included in the category as a “felony involving violence” under § 5-4-501(d)(2)(A), the General Assembly removed it from the list in 2007.2

The scenario you describe is after this 2007 change. The Arkansas Supreme Court has repeatedly held that parole eligibility is determined by the law in effect at the time the crime is committed.3 In your scenario, the offender committed the crime of aggravated robbery 1 A.C.A. § 16-93-609(b)(2)(A).
2
See Acts 2007, No. 827, § 15.
3
See, e.g., Pitts v. Hobbs, 2013 Ark. 457, 3; Aguilar v. Lester, 2011 Ark. 329, 2; Boles v. Huckabee, 340 Ark. 410, 412, 12 S.W.3d 201, 202 (2000); Woods v. Lockhart, 292 Ark. 37, 40, 727 S.W.2d 849, 851 (1987). The Honorable Joe Profiri Secretary of Corrections Opinion No. 2023-066 Page 3

in 2014, at which point sexual abuse in the first degree had already been removed from
§ 5-4-501(d)(2)(A)’s list of felonies. While that statute allows a prior conviction of “a comparable felony involving violence from another jurisdiction” to disqualify a repeat offender for parole eligibility, it does not allow a comparable Arkansas felony conviction to do so.4 Therefore, the offender’s prior offense of sexual abuse in the first degree would not qualify as “a violent felony offense or any felony sex offense” under § 16-93-609(b) so as to make him ineligible for release on parole.

The General Assembly may not have intended this result when it passed Act 827, particularly given its statement that sexual abuse in the first degree was removed from
§ 5-4-501(d)(2)(A) because it was “an obsolete reference.”5 But the language of
§ 5-4-501(d)(2) and § 16-93-609(b) is unambiguous: a “violent felony offense or any felony sex offense” means those offenses listed in § 5-4-501(d)(2).6 That subdivision “clearly enumerates the specific crimes that fall within [the] definition” of a “serious felony involving violence,”7 only providing for comparable felonies to be included if they occurred in another jurisdiction.8 This clear language means that an offender convicted of sexual abuse in the first degree and later convicted of another aggravated robbery after sexual abuse in the first degree was removed from § 5-4-501(d)(2)(A) would not be required to serve 100% of his or her sentence for aggravated robbery under
§ 16-93-609(b).9

Question 2: If not, does this also apply to criminal offenses which were re-codified as part of the 1987 revision of Arkansas law, or is it a distinguishing factor that these offenses were re-codified instead of repealed and a new offense created, as is the case with sexual abuse and sexual assault? For example, does a conviction for murder in the first degree committed prior to the 1987 recodification of Arkansas law qualify as a prior felony involving violence?

4
A.C.A. § 5-4-501(d)(2)(B) (emphasis added).
5
Acts 2007, No. 827, § 15.
6
A.C.A. § 16-93-609(b)(2)(A).
7
Wooten v. State, 2016 Ark. 376, *9, 502 S.W.3d 503, 509.
8
See A.C.A. § 5-4-501(d)(2)(B).
9
I have found two cases in my research involving offenders who were convicted of sexual abuse in the first degree and later convicted of another felony involving violence after the effective date of Act 827 of 2007, but neither case is instructive for our purposes. In one, the offender claimed that the Arkansas Department of Corrections erroneously applied the law to his case when it determined he must serve 100% of his sentence. The court modified the judgment and commitment/sentencing order, nunc pro tunc, and reduced the offender’s sentence without ruling on the merits of his claim. See State v. Smith, No. CR-2008-982 (Circuit Court of Craighead County, Order, February 27, 2014). In the other, the court did not rule on this particular issue because it was not raised or argued before the court. Rather, the court simply held that the prosecutor’s notation on a sentencing order that defendant was ineligible for parole did not make the order illegal on its face. See Flow v. State, 2021 Ark. 48, 617 S.W.3d 706. The Honorable Joe Profiri Secretary of Corrections Opinion No. 2023-066 Page 4

The Arkansas Supreme Court has made clear that an existing law recodified as part of the 1987 Arkansas Code’s creation is the exact same law before and after recodification: “It is the act passed by the legislature, not the code, that is the law. This is a fundamental legal principle.”10 Thus, if a person was convicted of murder in the first degree before that crime was recodified at A.C.A. § 5-10-102, the conviction would still be considered a prior violent felony offense for purposes of § 16-93-609(b).11

This situation differs from the scenario presented in your first question, where the sexual- abuse laws were not merely recodified or amended. Rather, those laws were repealed and replaced with new sexual-assault laws. While some of the elements of the new sexual- assault laws and the repealed sexual-abuse laws overlap, they are different crimes with different felony classifications. Consequently, we cannot state that sexual-assault crimes listed at § 5-4-501(d)(2)(A)(viii)–(ix) encompass prior convictions for the repealed offense of sexual abuse in the first degree.12 When the Protect Arkansas Act goes into effect fully, this problem will be resolved because the bases for parole eligibility will change.13

Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

10
Johnson v. State, 2018 Ark. 42, *3, 538 S.W.3d 819, 821.
11
See A.C.A. § 5-4-501(d)(2)(A)(i) (listing “Murder in the first degree, § 5-10-102” as a “felony involving violence”). 12 To read the statute this way would not only ignore the differences between the crimes, but it would ignore the fact that sexual assault in the first degree, sexual assault in the second degree, and sexual abuse in the first degree were all listed as separate crimes in A.C.A. § 5-4-501(d)(2)(A) from 2003 until 2007. 13 Act 659 of 2023, known as the “Protect Arkansas Act,” amends A.C.A. § 16-93-609(b)(1) so that it only applies to “a violent felony offense or any sex offense” committed after “August 13, 2001, but before January 1, 2025.” Acts 2023, No. 659, § 185 (emphasis added). It also it adds § 16-93-609(d)(1), which states, “Any person who commits a parole-ineligible felony on or after January 1, 2024, but before January 1, 2025, is not eligible for release on parole.” Id. For felonies committed on or after January 1, 2025, the Act creates a comprehensive new scheme regarding criteria for release eligibility.