James Daniel Koonce v. State of Arkansas

2023 Ark. App. 213

• Court: Court of Appeals of Arkansas
• Decided: April 12, 2023
• Status: Published

Opinion

Cite as 2023 Ark. App. 213 ARKANSAS COURT OF APPEALS DIVISION IV No. CR-22-535

JAMES DANIEL KOONCE Opinion Delivered April 12, 2023 APPELLANT APPEAL FROM THE POPE COUNTY CIRCUIT COURT V. [NO. 58CR-20-1089]

STATE OF ARKANSAS HONORABLE JAMES DUNHAM, APPELLEE JUDGE

AFFIRMED

CINDY GRACE THYER, Judge

James Daniel Koonce appeals a Pope County Circuit Court order amending his

original sentencing order to include a sex-offender-registration requirement. He asserts that

because he was not subject to a revocation hearing, the trial court lacked the authority to

alter his sentence. We disagree and affirm.

In September 2021, James Koonce entered a negotiated plea of nolo contendere to

one count of video voyeurism,1 a Class D felony, and one count of possession of a controlled

substance, a Class A misdemeanor. He was sentenced to four years’ probation. At the time

of his plea, video voyeurism was a qualifying sex offense subject to the requirements of the

1 The video-voyeurism charge arose out of an allegation that Koonce secretly recorded a sexual encounter in the shower of his dorm room. Sex Offender Registration Act of 1997 (SORA).2 Ark. Code Ann. § 12-12-903(13)(i)(y).

However, neither the sentencing order nor the conditions of probation specified that

Koonce was required under the SORA to register as a sex offender. In fact, the sex-offender-

registration provision of the sentencing order was actually marked no, indicating Koonce

was not required to register as a sex offender.

Approximately two months later, on November 30, 2021, the State filed a petition to

amend Koonce’s sentencing order to include the sex-offender-registration requirement. The

State asserted that the crime for which Koonce pled guilty required registration and that the

sentencing order incorrectly noted that it did not. The State admitted in its petition that

neither party had discussed the registration requirement at the plea hearing but claimed that

Arkansas law requires registration and that the sentencing order should be amended to

comply with Arkansas law.

Koonce responded, admitting that video voyeurism is an enumerated offense in the

SORA but denied that the sentencing order should be amended to require registration. He

asserted that modification of the order was prohibited because his sentence had already been

placed into execution and that his sentence could not be altered absent a revocation.

Essentially, Koonce argues that the circuit court lacked jurisdiction to amend the order.

2 Ark. Code Ann. §§ 12-12-901 et seq. (Repl. 2016 & Supp. 2021).

2 Without a hearing, the court amended the sentencing order on June 15, 2022. The

amended order requires Koonce to register as a sex offender and orders him to complete the

sex-offender-registration forms. Koonce timely appealed.

On appeal, Koonce argues, as he did below, that the circuit court lacked authority to

amend the sentencing order due to the limitations contained in Arkansas Code Annotated

section 5-4-301 (Supp. 2021).3 Section 5-4-301(d) provides:

(2) The entry of a judgment of conviction does not preclude:

(A) The modification of the original order suspending the imposition of sentence on a defendant or placing a defendant on probation following a revocation hearing held pursuant to § 16-93-307; and

(B) A modification set within the limits of §§ 16-93-309 and 16-93-312.

Because the statute employs the conjunctive “and” between the two subdivisions, Koonce

contends that, pursuant to our rules of statutory construction, both subsections must be

satisfied before the court may entertain a modification. Because no revocation hearing was

held, the court lacked the statutory authority to modify the sentence.

He further argues that, even if the subdivisions in § 5-4-301(d)(2) are viewed as

separate provisions, neither allows the circuit court to amend the sentencing order as it did

here. In short, Koonce argues that section 5-4-301(d)(2)(A) and section 16-93-309 are only

3 In making this argument, he also notes that prior caselaw made it clear that a court lost subject-matter jurisdiction to modify or amend an original sentence once the sentence was placed into execution and that Act 1569 of 1999 (Arkansas Code Annotated section 5- 4-301) modified the rule only to the extent it allowed modification or amendment of an original sentence after revocation.

3 implicated following a revocation hearing and that section 16-93-312 is inapplicable on these

facts.

While Koonce may well be correct in his analysis of section 5-4-301(d), his argument

is misplaced. Koonce was charged and pled no contest to the crime of video voyeurism.

Arkansas Code Annotated section 12-12-905(a)(1) requires that a person adjudicated guilty

of a qualifying sex offense after August 1, 1997, register as a sex offender. Video voyeurism

is a qualifying sex offense subject to the Act’s reporting requirements. Ark. Code Ann.

section 12-12-903(13)(i)(y). Thus, under the plain language of the statute, Arkansas Code

Annotated section 12-12-905(a)(1) mandates Koonce’s registration as a sex offender separate

and apart from the trial court’s authority to modify a sentence pursuant to Arkansas Code

Annotated section 5-4-301(d). Therefore, it makes no difference that Koonce’s original

sentencing order did not require him to register; the SORA mandated it. As a matter of fact,

a person is subject to the requirements of the SORA regardless of whether it was reflected

on the original judgment. See Justus v. State, 2012 Ark. 91; Guyton v. State, 2020 Ark. App.

273, 601 S.W.3d 440.

Koonce also attempts to characterize the court’s authority to amend the sentencing

order as one of subject-matter jurisdiction. Again, his characterization is misplaced. The

registration and notification components of the SORA are regulatory in nature and not a

form of punishment. Justus, supra. Because sex-offender registration is not a form of

punishment, it is not a criminal sentence. See Sullivan v. State, 2012 Ark. 74, 386 S.W.3d

507. Once Koonce was adjudicated guilty of an offense covered by the SORA, the SORA

4 mandated that the circuit court note on his sentencing order that he was required to register

as a sex offender. See Ark. Code Ann. § 12-12-906(a). Since the registration requirement was

not part of his sentence, the trial court was entitled to correct its error in omitting the SORA

requirements from the original sentencing order. Justus v. Hobbs, 2013 Ark. 149 (per curiam).

A court can correct what amounts to a clerical error at any time. See Misenheimer v. Hobbs,

2012 Ark. 343 (per curiam).

Koonce also argues, correctly, that the circuit court can dispense with the registration

requirement required by the SORA if it finds that there was no evidence of force,

compulsion, threat, or intimidation in the commission of the offense. Ark. Code Ann. § 12-

12-906(a)(1)(A)(iii)(b). However, Koonce did not raise this argument before the circuit court

either at the plea hearing or in his response to the motion to amend the sentencing order.

As such, he has failed to preserve this argument for our review. A party must raise issues to

the trial court to preserve them for appeal. Kennedy v. State, 2021 Ark. App. 413, 635 S.W.3d

524; Lane v. State, 2015 Ark. App. 672.

Affirmed.

ABRAMSON and GLADWIN, JJ., agree.

Tim Cullen, for appellant.

Leslie Rutledge, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.