Smith v. State ( 2013 )

Cite as 2013 Ark. 364SUPREME COURT OF ARKANSAS
No. CR-13-20
PATRICK CINQUE SMITH Opinion Delivered October 3, 2013
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT
[NO. CR-10-3534]
STATE OF ARKANSAS HONORABLE JAMES LEON
APPELLEE JOHNSON, JUDGE
AFFIRMED.
KAREN R. BAKER, Associate Justice
Appellant Patrick Cinque Smith appeals from the sentencing order of the Pulaski
County Circuit Court. He was sentenced to life imprisonment as a habitual offender under
Arkansas Code Annotated section 5-4-501(d)(1)(A) (Supp. 2011). Smith asserts two points
on appeal: (1) that the circuit court erred by denying his motion to dismiss because the State
intentionally delayed the start of his twelve-month speedy-trial period by refusing to serve the
arrest warrant issued for him when they knew he was incarcerated in the Pulaski County jail;
and (2) that the two fifteen-year sentences imposed on him by the jury under the firearm
enhancement were illegal. We have jurisdiction under Arkansas Supreme Court Rule 1-2
(a)(2) (2013) as this is a criminal appeal in which the sentence of life imprisonment has been
imposed. We affirm.
Because Smith does not contest the sufficiency of the evidence, only a brief recitation
of the facts is necessary. Durwin Lairy testified that, as he was driving from the River Market
Cite as 2013 Ark. 364area of Little Rock to his home in North Little Rock on July 18, 2009, Smith approached his
car and asked for money. When Lairy told Smith he didn’t have any money, Smith
threatened Lairy with a gun and got into Lairy’s car. Smith forced Lairy to drive to three
automated teller machines in order to withdraw a total of $500. Smith then had Lairy drive
to a housing area. Smith then got out of the car, taking with him Lairy’s wallet, cell phone,
laptop computer, and briefcase.
An arrest warrant was issued for Smith with regard to the above-mentioned events on
October 1, 2009. Smith was arrested on other charges on December 17, 2009, and held in
Pulaski County jail until he was tried on September 14 through 16, 2010; those charges are
unrelated to this appeal. After his conviction in that case, he was transferred to the Arkansas
Department of Correction. Smith was arrested on the October 1, 2009 arrest warrant on
September 29, 2010.
Subsequently, the State filed a felony information against Smith, charging him with
aggravated robbery, felony theft of property, and possession of a firearm by a felon. In
addition, the State alleged that Smith was subject to a sentence enhancement for using a
firearm to commit a felony and as a habitual offender with four or more felony convictions.12
A jury trial followed on August 21, 2012. Smith was found guilty of both counts, and his
sentence was enhanced.
For his first point on appeal, Smith claims that the circuit court erred in denying his
motion to dismiss on speedy-trial grounds. Smith argues that the State’s nine-month delay
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Prior to trial, the charge of felon in possession of a firearm was severed.
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Cite as 2013 Ark. 364in serving him with the arrest warrant did not comply with Arkansas Rule of Criminal
Procedure 29.1(a) (2013), which requires the prosecuting attorney to promptly seek the
presence of a prisoner for trial, and that this delay violated his rights to a speedy trial.
When we construe a court rule, our review is de novo, and we use the same means
and canons of construction that we use to interpret statutes. Kesai v. Almond, 2011 Ark. 207,
382 S.W.3d 669. The first rule of construction is to construe the statute or rule just as it
reads, giving the words their ordinary and usually accepted meaning in common language.
Id.In Robinson v. State, 2013 Ark. 60, we decided a case involving similar circumstances.
In Robinson, the defendant was incarcerated at the Grimes Unit of the Arkansas Department
of Correction on unrelated charges beginning on July 18, 2009, and the arrest warrant was
served on him on December 3, 2010. He asserted that speedy trial should begin to run on
March 24, 2010, when the police were informed that Robinson was a match for DNA found
at the crime scene, or on May 12, 2010, when the arrest warrants were filed.
We held that Robinson’s argument had no merit. Arkansas Rule of Criminal
Procedure 28.2(a) states that the speedy-trial period begins to run on the “date of arrest or
service of summons.” We held that, construing this rule just as it reads, giving the words their
ordinary and usually accepted meaning in common language, the speedy-trial period began
when Robinson was served with the arrest warrant, not when the warrant was issued.
Smith attempts to distinguish Robinson, pointing out that the delay in his case was
nearly ten months as opposed to Robinson’s seven. He also asserts that Robinson was held
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Cite as 2013 Ark. 364in the Arkansas Department of Correction, while Smith was held in Pulaski County, the same
county in which the arrest warrant was filed. However, these distinctions do not change the
plain language of the rule. The speedy-trial period begins to run on the date of arrest. Here,
the date of arrest was September 29, 2010.
Smith does not contest that there was not a speedy-trial violation if his time began to
run on the date of his arrest, September 29, 2010. Because we hold that his time began to run
on the date of his arrest, the circuit court did not err in denying Smith’s motion to dismiss.
For his second point on appeal, Smith claims that the two fifteen-year sentences
imposed on him by the jury for using a firearm to commit aggravated robbery and to commit
theft of property were illegal under the plain meaning of Arkansas Code Annotated section
5-4-104(a) (Supp. 2009). Smith concedes that we addressed this issue in Williams v. State, 364
Ark. 203, 217 S.W.3d 817 (2005). Smith asserts that this court erred in our holding in
Williams and requests that we overrule it.
While Smith asserts this argument for the first time on appeal, the imposition of a void
or illegal sentence is subject to challenge at any time. Thomas v. State, 349 Ark. 447, 79
S.W.3d 347 (2002). Sentencing in Arkansas is entirely a matter of statute, and where the law
does not authorize the particular sentence imposed by a trial court, the sentence is
unauthorized and illegal. State v. Joslin, 364 Ark. 545, 222 S.W.3d 168 (2006).
In Williams, the defendant argued that the five-year sentence imposed on him under
Arkansas Code Annotated section 16-90-120(a) and (b) (Repl. 2006), for having used a
firearm to commit aggravated robbery, was forbidden by section 5-4-104(a). In that case,
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Cite as 2013 Ark. 364Williams asserted that because his commission of aggravated robbery occurred after the passage
of the Arkansas Criminal Code in 1975 and because aggravated robbery is defined in the
Arkansas Criminal Code, his sentencing should have been governed solely by that Code, and
not by any other statutory provision. To support his argument, he pointed to section 5-4-
104(a), which reads: “No defendant convicted of an offense shall be sentenced otherwise than
in accordance with this chapter.” He further asserted that because Arkansas Code Annotated
section 5-1-103(a) (Repl. 1997) provided that the provisions of the Arkansas Criminal Code
“shall govern the prosecution for any offense defined by this code and committed after
January 1, 1976,” his crime, which occurred in 2004, was governed only by the Arkansas
Criminal Code. He concluded that section 16-90-120(a–b) is not included in the Arkansas
Criminal Code and could not be applied.
We disagreed, holding that the two statutory schemes could 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 section 16-90-120(a)–(b) can
be read as referring only to a sentence enhancement that may be added to the initial sentence.
Smith asserts that we erred in failing to address the second sentence of the commentary
to Arkansas Statute Annotated section 41-803(1) (Repl. 1977).3 This sentence states,
“Subsection (1) makes it clear that the disposition of a defendant convicted of any offense,
whether defined by this Code, another statute, or a municipal ordinance, is governed by the
provisions of this article.” Smith argues that the normal definition of “disposition” in this
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Now codified at Arkansas Code Annotated section 5-4-104.
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Cite as 2013 Ark. 364context is “final determination,” which is a broader meaning than “the minimum sentences
to be imposed for each specific offense,” as outlined in Williams. While the commentary to
a statute is a highly persuasive aid to construing the statute, it is not controlling over the
statute’s clear language. State v. Owens, 370 Ark. 421, 260 S.W.3d 288 (2007).
When presented with the challenge of construing criminal statutes that were enacted
at different times, this court presumes that when the General Assembly passed the later act,
it was well aware of the prior act. Williams, supra. “The General Assembly is presumed to
be familiar with the appellate courts’ interpretation of its statutes, and if it disagrees with those
interpretations, it can amend the statutes. Without such amendments, however, the appellate
courts’ interpretations of the statutes remain the law.” Miller v. Enders, 2013 Ark. 23, at 6,
___ S.W.3d ___, ___. Therefore, we presume that not only did the General Assembly know
of section 16-90-120 when section 5-4-104(a) was enacted in 1975 and chose not to overrule
it, but that the General Assembly knows of our holding in Williams, and has chosen not to
amend the statute in the last eight years.
Finally, we do not lightly overrule our previous cases. The policy behind stare decisis
is to lend predictability and stability to the law. Cochran v. Bentley, 369 Ark. 159, 174, 251
S.W.3d 253, 265 (2007). There is a strong presumption of the validity of prior decisions, and
it is necessary, as a matter of public policy, to uphold prior decisions unless great injury or
injustice would result. Id. Precedent governs until it gives a result so patently wrong, so
manifestly unjust, that a break becomes unavoidable. Id. Smith has failed to demonstrate that
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Cite as 2013 Ark. 364our holding in Williams is patently wrong or manifestly unjust. Accordingly, we decline to
overrule Williams, and hold that Smith’s sentence is not illegal.
In compliance with Arkansas Supreme Court Rule 4-3(i), the record has been
examined for all objections, motions, and requests made by either party that were decided
adversely to appellant, and no prejudicial error has been found.
Affirmed.
Dan Hancock, Deputy Public Defender, by: Clint Miller, Deputy Public Defender, for
appellant.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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