Neely v. State

2010 Ark. 452, 370 S.W.3d 820, 2010 Ark. LEXIS 558
CourtSupreme Court of Arkansas
DecidedNovember 18, 2010
DocketNo. CR 10-300
StatusPublished
Cited by11 cases

This text of 2010 Ark. 452 (Neely v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Neely v. State, 2010 Ark. 452, 370 S.W.3d 820, 2010 Ark. LEXIS 558 (Ark. 2010).

Opinions

JIM GUNTER, Justice.

liAppellant was convicted of first-degree murder and sentenced to sixty years’ imprisonment, plus fifteen years’ imprisonment pursuant to a firearm enhancement, to run consecutively. Appellant now appeals his sentencing enhancement, arguing that the firearm-enhancement statute, codified at Ark.Code Ann. § 16-90-120 (Supp.2009), has been repealed by implication. Because this case involves an issue of statutory interpretation, this court has jurisdiction pursuant to Ark. Sup. Ct. R. 1 — 2(b)(6). We affirm.

Because appellant is not challenging the sufficiency of the evidence supporting his conviction, only a brief recitation of facts is necessary. In a felony information filed May 5, 2009, appellant was charged with first-degree murder in the death of Timothy Williams.1 The 12information also charged appellant as a habitual offender and asserted that his sentence should be enhanced pursuant to Ark.Code Ann. § 16-90-120, as he had employed a firearm while committing the charged offense. Section 16-90-120 provides, in pertinent part:

(a) Any person convicted of any offense which is classified by the laws of this state as a felony who employed any firearm of any character as a means of committing or escaping from the felony, in the discretion of the sentencing court, may be subjected to an additional period of confinement in the state penitentiary for a period not to exceed fifteen (15) years.
(b) The period of confinement, if any, imposed pursuant to this section shall be in addition to any fine or penalty provided by law as punishment for the felony itself. Any additional prison sentence imposed under the provisions of this section, if any, shall run consecutively and not concurrently with any period of confinement imposed for. conviction of the felony itself.

Ark.Code Ann. § 16 — 90—120(a), (b) (Supp. 2009). A jury trial was held on November 12-13, 2009. On the second day of trial, prior to the commencement of testimony, a bench conference was held to discuss jury instructions. During this discussion, appellant objected to the use of the instruction on the firearm enhancement under § 16-90-120, arguing that the statute had been repealed by the adoption of the Model Penal Code. Appellant’s objection was overruled, and the jury was instructed according to AMI Crim. 2d 8201, which incorporates the provisions of the statute. The jury found appellant guilty of first-degree murder and recommended a sentence of sixty years’ imprisonment. The jury also found that appellant had employed a firearm as a means of committing first-degree murder and recommended a sentence enhancement of fifteen years’ imprisonment. The court adopted the jury’s recommendation and sentenced appellant accordingly, and a judgment and commitment order was entered on November 24, 2009. Appellant filed a timely notice of appeal on | ^December 21, 2009.

On appeal, appellant argues that his sentence enhancement was illegal because it was imposed pursuant to § 16-90-120, which was repealed by implication when the Arkansas Criminal Code became effective on January 1, 1976. More specifically, appellant asserts that § 16-90-120(a) and (b) were formerly codified at Ark. Stat. Ann. §§ 43-2336 and 43-2337, and the new Arkansas Criminal Code also contained a firearm enhancement provision codified at Ark. Stat. Ann. § 41-1004 (later codified at Ark.Code Ann. § 5-4-505). Section 43-2336 provided for an additional period of confinement, up to fifteen years, for employing a firearm while committing a felony, and § 43-2337 provided that the additional confinement would run consecutively to whatever fine or penalty was provided by law for the felony itself. Section 41-1004 mandated that if a defendant was convicted of a felony and was found to have employed a firearm in the course or furtherance of the felony, the maximum permissible sentence otherwise authorized shall be extended by fifteen years. Appellant argues that §§ 43-2336 and 43-2337 were in irreconcilable conflict with § 41-1004 on January 1, 1976, the date the criminal code was enacted, and that the General Assembly did not intend for §§ 43-2336 and 43-2337 to remain in effect after January 1, 1976. Alternatively, appellant also argues that § 41-1004 replaced §§ 43-2336 and 43-2337, so those sections no longer remained viable.

It is well settled that statutes relating to the same subject should be read in a harmonious manner if possible. Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002). All legislative acts relating to the same subject are said to be in pari materia and must be construed ^together and made to stand if they are capable of being reconciled. Id. Repeals by implication are not only strongly disfavored by the law, but a statute will be impliedly repealed in Arkansas only when two enactments cannot stand together. Cox v. State, 365 Ark. 358, 229 S.W.3d 883 (2006). Repeal by implication is only recognized in two situations: (1) where the statutes are in irreconcilable conflict, and (2) where the legislature takes up the whole subject anew, covering the entire subject matter of the earlier statute and adding provisions clearly showing that it was intended as a substitute for the former provision. Thomas, supra. We will not find a repeal by implication if there is any way to interpret the statutes harmoniously. Cox, supra. In addition, a circuit court’s ruling on whether to submit a jury instruction will not be reversed absent an abuse of discretion. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003).

This court addressed an argument similar to the present argument in Williams v. State, 364 Ark. 203, 217 S.W.3d 817 (2005). In Williams, the defendant argued that a five-year sentence imposed on him under § 16-90-120(a) was forbidden by § 5-4-104(a). Williams argued that, because his commission of aggravated robbery occurred after the passage of the Arkansas Criminal Code in 1975, his sentencing should be governed only by that code, and that § 16-90-120(a) was not included in the criminal code and could not be applied. This court stated:

The crux of Williams’s argument is that there is a conflict between § 5-4-104(a) and § 16-90-120(a-b). In this case, these two statutory provisions can be read in a harmonious manner. Section 5-4-104(a) can be viewed as referring only to the initial sentence imposed based on the crime for which the defendant was convicted, and § 16-90-120(a-b) can be read as referring only to a sentence enhancement that may be added to the initial sentence.
[¡Looking at the clear language of § 16-90-120(a-b), we observe that the legislature intended the statute to serve as an enhancement of the original sentence for the convicted crime, as the statute itself says that the sentence enhancement is an “additional period of confinement.” Ark.Code Ann. § 16-90-120(a) (emphasis added). We further note that when § 5-4-104(a) was enacted in 1975, the legislature did not choose to repeal or overrule § 16-90-120(a-b). This is important, since in Johnson v.

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2010 Ark. 452, 370 S.W.3d 820, 2010 Ark. LEXIS 558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neely-v-state-ark-2010.