Sesley v. State

2011 Ark. 104, 380 S.W.3d 390, 2011 Ark. LEXIS 92
CourtSupreme Court of Arkansas
DecidedMarch 10, 2011
DocketNo. CR 10-922
StatusPublished
Cited by13 cases

This text of 2011 Ark. 104 (Sesley 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
Sesley v. State, 2011 Ark. 104, 380 S.W.3d 390, 2011 Ark. LEXIS 92 (Ark. 2011).

Opinions

JIM GUNTER, Justice.

|!Appellant Zvontric Lamar Sesley asks this court to reconsider and overrule a previous decision, Neely v. State, 2010 Ark. 452, 370 S.W.3d 820, in which we held that Ark.Code Ann. § 16-90-120 (Supp.2009), was not repealed by implication when the new Arkansas Criminal Code took effect on January 1, 1976. When appellant filed his brief in the present case on December 20, 2009, Neely had been decided by this court but a petition for rehearing was pending.1 Appellant asks this court to reconsider its previous position now that two members of the Neely majority have been replaced. We decline to reverse our recent precedent and affirm appellant’s conviction.

Appellant does not challenge the sufficiency of the evidence supporting his conviction, therefore only a brief recitation of the facts pertinent to the issue on appeal is necessary. On ^December 22, 2009, the State charged appellant by felony information -with seven felony counts, including three counts of aggravated robbery, three counts of theft of property, and one count of committing a terroristic act. The State alleged that because appellant committed the felonies while employing a firearm, his sentence should be enhanced pursuant to Ark. Code Ann. § 16-90-120.

On May 12, 2010, appellant was convicted by a Pulaski County jury of all seven counts. The jury found that appellant had employed a firearm during the commission of each of the seven felonies. After the guilt phase of the trial but prior to the sentencing phase, appellant filed a Motion to Dismiss the Ark.Code Ann. § 16-90-120 Sentencing Enhancement, arguing that the statute had been repealed. The circuit court entertained argument from both appellant and the State with regard to the motion, treating the motion as a timely objection to being sentenced under the enhancement.2 The court denied the motion to dismiss and found that the statute had not been repealed.

Upon recommendation of the jury, the circuit court sentenced appellant to seventeen years on each of the three aggravated-robbery counts, each with an additional five-year enhancement for employing a firearm; five years on each of the three theft-of-property counts, each with an additional five-year enhancement for employing a firearm; and five years on the ter-roristic-act count, also with an additional five-year enhancement for employing a | sfirearm. The court ran the sentences for all charges concurrent, and it ran the enhancements concurrent with each other but consecutive to the felony-charge sentences. Appellant was sentenced to a total of twenty-two years’ imprisonment. The judgment and commitment order was entered on May 26, 2010, and appellant filed his notice of appeal from that order on June 16, 2010.

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 strongly disfavored by the law, and a statute will only be impliedly repealed in Arkansas 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 a way to interpret the statutes harmoniously. Cox, supra.

Appellant’s sole point on appeal before this court is whether his additional five-year enhancement for employing a firearm during the commission of his felonies was an illegal sentence because it was imposed pursuant to Ark.Code Ann. § 16-90-120, which appellant maintains has been repealed by implication when the new Arkansas Criminal Code became 1¿effective on January 1, 1976. More particularly, appellant asserts that § 16-90-120 (previously codified at Ark. Stat. Ann. §§ 43-2336 and 43-2337) and Ark. Stat. Ann. § 41-1004 (later codified at Ark.Code Ann. § 5-4-505) both contained a firearm-enhancement provision resulting in an irreconcilable conflict. Section 43-2336 provided for an additional period of confinement, up to fifteen years, for employing a firearm while committing a felony, and section 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, as part of the newly revised Arkansas Criminal Code, 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.

Appellant acknowledges that this court recently rejected this same argument— that § 16-90-120 was repealed by implication when the new criminal code took effect—in Neely v. State, 2010 Ark. 452, 370 S.W.3d 820. He maintains that this court should reverse its Neely decision because our determination in Neely that §§ 43-2336 and 43-2337 could be read in harmony with § 41-1004 was error. Appellant claims that the “deadly weapon” exception to 1 fi§ 41-1004(1), as explained in the Commentary to that section, illustrates the error where it states that

the fact that a number of Code offenses are graded more severely when a deadly weapon is involved. It is obviously unfair to convict a person of a more serious felony because he used a deadly weapon and then further increase the penalty for the felony because the deadly weapon was a firearm.

Ark. Stat. Ann. § 41-1004 cmt. (Repl.1977) (later codified at Ark.Code Ann. § 5-4-505), repealed by Acts of March 16, 1993, Nos. 533 & 550, 1993 Ark. Acts 1471, 1603. Appellant asserts that allowing §§ 43-2336 and 43-2337 to stand after January 1, 1976, frustrates the new criminal code’s goal of eliminating overlapping criminal statutes. Moreover, appellant contends that our Neely opinion fails to analyze the General Assembly’s intent in enacting the Arkansas Criminal Code to deduce whether it intended §§ 43-2336 and 43-2337 to be repealed and replaced by § 41-1004.

The firearm-enhancement statutory provision found in § 16-90-120 states, 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.

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Bluebook (online)
2011 Ark. 104, 380 S.W.3d 390, 2011 Ark. LEXIS 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sesley-v-state-ark-2011.