Donald Black v. State of Arkansas

2022 Ark. App. 66

• Court: Court of Appeals of Arkansas
• Decided: February 9, 2022
• Status: Published

Opinion

Cite as 2022 Ark. App. 66 ARKANSAS COURT OF APPEALS DIVISION II CR-21-182 No.

Opinion Delivered February 9, 2022

DONALD BLACK APPEAL FROM THE SALINE APPELLANT COUNTY CIRCUIT COURT [NO. 63CR-19-302]

V. HONORABLE GRISHAM PHILLIPS, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED AS MODIFIED

LARRY D. VAUGHT, Judge

Donald Black appeals the sentencing order entered by the Saline County Circuit Court

on September 10, 2020, revoking his probation, convicting him of third-degree domestic

battery, and sentencing him to serve six months in jail “to be served straight” with an additional

six months suspended. On appeal, Black argues that the circuit court erred in ordering him to

serve straight jail time without the opportunity to earn meritorious good-time credit. The State

concedes error. We affirm the sentencing order as modified.

On April 6, 2019, Black was charged with terroristic threatening, a Class D felony, and

third-degree domestic battery, a Class A misdemeanor. On July 23, Black pled guilty to the

domestic-battery charge,1 and he was ordered to serve twelve months’ probation and to pay a

$500 fine. As part of his guilty plea, Black signed conditions of probation. On January 7, 2020,

1The terroristic-threatening charge was nolle prossed. the State filed a petition to revoke Black’s probation alleging that he had violated several

conditions of his probation.2

A revocation hearing was held on September 4, during which seven witnesses,

including Black, testified. At the conclusion of the evidence, the circuit court orally found that

Black had violated the conditions of his probation and sentenced him to serve twelve months

in jail with six months suspended. In response to the court’s sentence, Black asked, “Is that

six months flat or will I get the two for one credit on that?” The circuit court answered, “Six

months straight time, sir.” Black’s counsel asked the court: “Doesn’t the jail determine whether

they get that two for one credit or not?” The court responded: “Well I sometimes leave that

to the discretion of the sheriff, but not always, so in this particular instance I’m not leaving it

to the discretion of the sheriff.” Black’s counsel objected, arguing that the court’s refusal to

allow the sheriff to have the discretion to give credit for good behavior violated the separation-

of-powers doctrine. The court overruled the objection. In its sentencing order, the court

sentenced Black “to six months in the county Jail (to be served straight) with an additional six

months suspended . . . .”

On appeal, Black does not challenge the sufficiency of the evidence supporting the

order revoking his probation. Rather, he contends that the circuit court erred in ordering him

to serve six months in jail “straight.”

This appeal requires us to interpret Arkansas Code Annotated section 12-41-101. We

review issues involving statutory construction de novo, as it is for this court to decide the

meaning of a statute. Smith v. State, 2020 Ark. 410, at 5. Significantly, penal statutes are to be

2The State amended the petition twice to allege additional violations.

2 strictly construed with all doubts resolved in favor of the defendant. Id. Strict construction

means narrow construction and requires that nothing be taken as intended that is not clearly

expressed. Id. However, even a penal statute must not be construed so strictly as to defeat the

obvious intent of the legislature. Id.

Section 12-41-101 provides:

(a) An inmate committed by any court in Arkansas to a county jail or city jail in the State of Arkansas may be entitled to a reduction, to be known as “meritorious good time”, from his or her maximum term of his or her sentence to be served in the county jail or city jail.

(b)(1) Meritorious good time shall be awarded under the rules and regulations promulgated by the county sheriff or chief of police and approved by the county quorum court of the various counties or the city legislative body of the various cities.

(2) Meritorious good time shall be administered by the county sheriff or chief of police, subject to this subchapter, for good discipline, good behavior, work practices, and job responsibilities within the county jail or city jail.

Ark. Code Ann. § 12-41-101(a), (b) (Repl. 2016).

In Upton v. State, 68 Ark. App. 84, 4 S.W.3d 510 (1999), a jury found the appellant guilty

of three misdemeanor charges and recommended that he pay fines on all three charges and

serve 105 days in the county jail on one of the charges. The circuit court accepted the jury’s

sentencing recommendations but added the provision that the appellant serve his jail time

“flat,” without credit for meritorious good time. Id. at 84–85, 4 S.W.3d at 511.

The appellant’s counsel filed a no-merit appeal, and one of the appellant’s pro se points

on appeal was that the circuit court erred by denying him the opportunity to receive credit on

his jail sentence for meritorious good time. Id. at 86, 4 S.W.3d at 512. This court, citing section

12-41-101, held that the circuit court did not have the authority to deny the appellant

meritorious good time: “It is clear from the language of the foregoing statute that the authority

3 to grant or deny meritorious good time to a county inmate belongs to the sheriff of the county

to whose jail an inmate is committed, not to the judge ordering the commitment.” Id. at 86–

87, 4 S.W.3d at 512. After concluding that there was no merit to an appeal of appellant’s case,

this court granted appellant’s counsel’s motion to withdraw and affirmed the judgment and

commitment order with the modification that the requirement that the appellant serve the 105

days “flat,” without good-time credit, be deleted. Id. at 87, 4 S.W.3d at 512.

In light of the holding in Upton, we conclude that the statutory authority to administer

meritorious good time to inmates committed to a county jail lies with the county sheriff and

not the circuit court. Therefore, the circuit court erred in ordering Black to serve six months

in jail “straight”—without the opportunity to earn meritorious good-time credit. We affirm

the sentencing order with the modification that the provision requiring that Black’s sentence

of incarceration “be served straight” be deleted.

Affirmed as modified.

GRUBER and MURPHY, JJ., agree.

Jones Law Firm, by: F. Parker Jones III and Vicram Rajgiri, for appellant.

Leslie Rutledge, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.