Jamar Conic v. State of Arkansas , 2023 Ark. App. 145 ( 2023 )


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  •                                 Cite as 
    2023 Ark. App. 145
    ARKANSAS COURT OF APPEALS
    DIVISION IV
    No. CR-22-245
    JAMAR CONIC                                   Opinion Delivered March   15, 2023
    APPELLANT
    APPEAL FROM THE PULASKI
    COUNTY CIRCUIT COURT,
    V.                                            ELEVENTH DIVISION
    [NO. 60CR-15-2679]
    STATE OF ARKANSAS
    APPELLEE HONORABLE ANDREW GILL,
    JUDGE
    REVERSED AND REMANDED
    BRANDON J. HARRISON, Chief Judge
    Jamar Conic appeals from sentencing proceedings for a fourth-offense driving while
    intoxicated (DWI 4th), an unclassified felony he admittedly committed 15 May 2015. 
    Ark. Code Ann. §§ 5-65-103
    , -111(b)(3)(A) (Supp. 2013). This was his fifth sentencing for that
    offense.
    Conic was originally sentenced, after a guilty plea, to thirty-six months’ probation,
    plus suspended fines and court costs, in a judgment entered in March 2016. 1 In June 2016,
    1
    Conic was sentenced on related counts of attempting to influence a public servant,
    
    Ark. Code Ann. § 5-52-105
     (Repl. 2016) (count 2), driving with a suspended license, 
    Ark. Code Ann. § 5-65-105
     (Supp. 2015) (count 3), and refusing to submit to a chemical test,
    
    Ark. Code Ann. § 5-65-205
     (Supp. 2015) (count 4). The court imposed twelve months’
    probation for count 2, and thirty days each for counts 3 and 4, to run concurrently. A note
    on the sentencing order reads, “Random Drug Screens, PAC Treatment, $500 Fine and
    Court Costs are Suspended, No Act 531 on Count One. Act 531 on Cts. 2-4.” Conic
    discharged his probation on counts 2 through 4 before the events relevant to this appeal, so
    we don’t discuss them further.
    the circuit court modified the sentence after a revocation hearing. A note in the sentencing
    order reads, “Random Drug Screening, PAC Treatment, No Fine But Court Costs Are
    Assessed, No Act 531, No Alcohol.” A third sentencing order, identical except for the
    sentencing date, was entered in October 2016. With it, the court entered conditions of
    release for a three-year probation term beginning October 6.
    Conic was next sentenced—for a fourth time if you are counting—on a revocation
    petition filed 19 August 2019. We addressed his appeal from those proceedings, and his
    sentence to three years’ incarceration, in Conic v. State, 
    2021 Ark. App. 185
    , 
    624 S.W.3d 322
     (Conic I). We reversed and remanded for resentencing because the circuit court had
    violated Conic’s Sixth Amendment rights in the circumstances when it made him proceed
    uncounseled at a felony revocation sentencing. 2
    On remand and before resentencing, Conic petitioned to correct a manifest injustice
    under Ark. R. Crim. P. 26, and to correct an illegal sentence under 
    Ark. Code Ann. § 16
    -
    90-111 (Repl. 2016). In the petition, he objected to the legality of his sentence: probation
    is not a legal sentence for DWI, he said, so resentencing him in a revocation proceeding
    2
    Conic had also raised this about his sentence: When he pleaded guilty to DWI 4th,
    he had pleaded guilty to, but not yet been sentenced for, one of the three DWI offenses.
    Conic I, 
    2021 Ark. App. 185
    , at 15, 624 S.W.3d at 332. By the 2019 revocation hearing,
    that case had been dismissed on speedy-trial grounds. We held that Conic’s appeal from the
    order denying relief was untimely. Id. at 15–16, 624 S.W.3d at 332. Further, his motion
    was itself untimely because Conic’s challenge did not affect the facial legality of the
    judgment. Id. at 16–17, 624 S.W.3d at 332.
    2
    related to the violation of a probationary period that was related to a DWI would also be
    illegal. 3
    The State argued that Conic’s probation sentence for DWI 4th was not illegal. For
    one thing, it said, the statutes don’t explicitly prohibit DWI offenses from being transferred
    to drug-treatment court, and “specialty treatment courts around the state—including DWI
    courts—have routinely placed defendants convicted of DWI into programs like Pulaski
    County’s Drug Court” to reduce recidivism “through treatment as opposed to
    incarceration.” 4 The circuit court denied Conic’s petition from the bench. After a two-
    part revocation hearing in November 2021, the circuit court sentenced Conic to forty-eight
    months in the Arkansas Department of Correction with judicial transfer to a Community
    Correction Center.
    Conic moved the court to reconsider his petition. The circuit court did not rule on
    it. Conic noticed a timely appeal from the resulting automatic denial by law. Ark. R. Crim.
    P. 33.3(c). He argues here that on remand, the circuit court erred by resentencing him in
    proceedings to revoke an illegal probation sentence.
    3
    In his motion for reconsideration, Conic asserted that his fundamental rights had
    been violated. His only argument that might have been sufficiently developed to preserve
    it for appeal involved his assertedly erroneous guilty plea to DWI 4th. It is not clear whether
    he raises it on appeal. We would reject it, in any event, for the reasons we rejected it in the
    first appeal. Conic I, 
    2021 Ark. App. 185
    , at 16–17, 624 S.W.3d at 332–33.
    4
    (Emphasis in original.) The State also contended that if probation were not a legal
    sentence, we would have corrected it in Conic I. It does not renew that argument here.
    3
    I.   Standard of Review
    This Court will not reverse a circuit court’s denial of a motion to correct an illegal
    sentence pursuant to 
    Ark. Code Ann. § 16-90-111
    (a) unless the circuit court’s decision is
    clearly erroneous. E.g., Johnson v. State, 
    2019 Ark. App. 68
    , 
    571 S.W.3d 519
    . A finding is
    clearly erroneous when, although there is evidence to support it, the appellate court is left
    with a definite and firm conviction that the circuit court has made a mistake. E.g., 
    id.
    But sentencing in Arkansas is entirely a matter of statute. E.g., 
    id.
     A sentence is
    illegal if the statutes in place when the crime was committed did not authorize it. Walden
    v. State, 
    2014 Ark. 193
    , 
    433 S.W.3d 864
    ; Richie v. State, 
    2009 Ark. 602
    , 
    357 S.W.3d 909
    .
    We review issues involving statutory construction de novo because the appellate court
    decides the meaning of a statute. State v. Colvin, 
    2013 Ark. 203
    , 
    427 S.W.3d 635
    . The
    basic rule of statutory construction is to give effect to the intent of the legislature. E.g., 
    id.
    “[P]enal statutes are to be strictly construed, and all doubts are to be resolved in favor of the
    defendant. However, even a penal statute must not be construed so strictly as to defeat the
    obvious intent of the legislature.” Id. at 7, 
    427 S.W.3d at 640
    . When construing a statute,
    we must “place it beside other statutes relevant to the subject matter in question and ascribe
    meaning and effect to be derived from the whole.” 
    Id.
     Finally, “[s]tatutes relating to the
    same subject must be construed together and in harmony, if possible.” 
    Id.
     Because a
    defendant must be sentenced under the laws effective when the offense was committed,
    State v. O’Quinn, 
    2013 Ark. 219
    , at 3, 
    427 S.W.3d 668
    , 670, we discuss the statutes as they
    read on 15 May 2015.
    4
    II. Is Probation a Legal Sentence for Driving While Intoxicated?
    Here, Conic renews his argument that he was illegally sentenced on revocation
    because probation was not a lawful sentence for DWI. The State contends the sentence was
    not necessarily illegal, because statutory permission for DWI offenders to participate in drug
    court might have allowed probation in connection with Conic’s participation there. 5
    The State acknowledges that “at first blush,” Conic might seem to be right. It
    acknowledges, for example, that sections 5-4-104(e)(1)(A)(iv) and 5-4-301(a)(1)(D) (Repl.
    2013) provide that “a court shall not suspend imposition of sentence as to a term of
    imprisonment or place a defendant on probation” for DWI. But the Omnibus DWI Act
    provides, notwithstanding sections “5-4-301, 5-4-322, or subsection [5-65-108(c)(1)], in
    addition to the mandatory penalties required for a violation of § 5-65-103,” that a judge
    may “utilize probationary supervision solely for the purpose of monitoring compliance with
    his or her orders[.]” 
    Ark. Code Ann. § 5-65-108
    (c)(2). The drug-court statutes mention
    DWI offenders and do not exclude them from participating. 
    Ark. Code Ann. § 16-98
    -
    303(c)(1) and (g)(2)(B)(iv).    So the State argues that Conic’s probation sentence, in
    connection with drug court, “does not conflict with the prohibition against probation as it
    is defined by Arkansas law.” We cannot agree with the State’s argument as it is presented
    and supported in this case. 6
    5
    Both the parties and the circuit court referred to Conic’s participation in drug court,
    but we saw no related documentation in the record.
    6
    The State cites, and substantially relies on, an analysis of these issues in Op. Ark.
    Att’y Gen. No. 200 (2009).
    5
    First, we conclude from this record that Conic was sentenced to ordinary probation,
    not “probationary supervision” under subsection 108(c)(2). The two are not one and the
    same thing.    That provision assumes the “mandatory penalties required for” a DWI
    conviction have been imposed. But the mandatory penalties were not imposed with Conic’s
    probation sentence. This record (which is admittedly thin before Conic’s 2020 revocation)
    doesn’t suggest the court used “probationary supervision solely for the purpose of monitoring
    compliance” with its orders either. (Emphasis added.) Conic was sentenced to probation in
    October 2016 on conditions that were mostly standard. His latest revocation was for new
    arrests, a common violation of standard conditions. He was sentenced to serve probation
    for “a definite period of time” that did not exceed the maximum prison sentence for his
    offense, consistent with 
    Ark. Code Ann. § 5-4-306
     (Repl. 2013). There was no connection
    to court-ordered obligations that might have been discharged sooner.          In any event,
    subsection 108(c)(2) does not seem to contemplate a probation sentence at all. It seems to
    supply, instead, a mechanism for monitoring compliance with orders where noncompliance
    would be punished through contempt, not resentencing for the DWI offense.
    Second, several statutes unambiguously prohibit probation for DWI offenders. For
    example, 
    Ark. Code Ann. § 5-4-301
    (a)(1) & (a)(1)(D) states, “A court shall not suspend
    imposition of sentence as to a term of imprisonment or place a defendant on probation for
    . . . [d]riving while intoxicated, § 5-65-103[.]” And 
    Ark. Code Ann. § 5-4-321
     allows a
    court, in a misdemeanor traffic case “other than a case involving driving under the influence
    of alcohol or a drug”, to postpone judgment for not more than one year with the defendant
    on supervised or unsupervised probation status. See also 
    Ark. Code Ann. § 5-4-322
    (b)(1)
    6
    (noting that section involving probation fees “does not apply when the defendant is charged
    with violating the Omnibus DWI Act, § 5-65-101 et seq.”). The requirement that any
    DWI offender be “imprisoned” for some time, 
    Ark. Code Ann. § 5-65-111
    , implicitly (and
    logically) prohibits probation because no one can be sentenced to serve probation after a
    term of imprisonment. 7     Elsewhere, the General Assembly attempted to prevent a
    procedural evasion of these requirements after a DWI arrest. See 
    Ark. Code Ann. § 5-65
    -
    107 (A person arrested for DWI “shall be tried on those charges or plead to those charges,
    and no such charges shall be reduced” and any DWI citation “shall be filed with the court
    as soon as possible”.).
    We acknowledge that probation is more directly prohibited before an adjudication
    of guilt. Section 5-65-108 explicitly prohibits using the procedure in 
    Ark. Code Ann. §§ 16-93-301
     et seq., under which a judge “is allowed to discharge the accused without a court
    adjudication of guilt” and expunge the record. Ark. Code Ann § 5-65-108(a), (b) & (c)(1).
    A statute in Chapter 4 of the Criminal Code, where some of the statutes that prohibit
    probation for DWI are found, similarly defines “probation” as a procedure in which a
    defendant “is released by the court without pronouncement of sentence.” 
    Ark. Code Ann. § 5-4-101
    (2) (Repl. 2013). But other statutes allow probation as a sentence for a conviction
    (meaning an “adjudication of guilt”). For example, probation must be imposed in a
    7
    E.g., Moore v. State, 
    2022 Ark. App. 185
    , 
    644 S.W.3d 448
    . The statute that prohibits
    this, 
    Ark. Code Ann. § 5-4-104
    (e)(3)(B), includes an exception for orders to serve a period
    of confinement as a condition of probation under 
    Ark. Code Ann. § 5-4-304
    . But
    confinement “is not deemed a sentence to a term of imprisonment[.]” 
    Id.
     § 5-4-304(b).
    7
    judgment of conviction if the defendant is also sentenced to pay a fine. See 
    Ark. Code Ann. § 5-4-301
    (d)(1) & (d)(1)(A).
    Anyway, the State doesn’t argue probation is available for DWI offenders outside
    drug court. But even when dealing with an offender under the Drug Court Act, the circuit
    court is bound by the general sentencing provisions of the Arkansas Criminal Code. Cross
    v. State, 
    2009 Ark. 597
    , at 9, 
    357 S.W.3d 895
    , 901. And they unambiguously prohibit
    probation for DWI offenders.        We cannot interpret them as the State asks without
    legislating.
    We express no opinion about the circuit court’s other sentencing options on remand.
    But for a DWI committed 15 May 2015, they do not include, and never have included,
    probation.
    III. Remand
    The State argues we don’t need to order resentencing, even if Conic’s probation
    sentence was illegal, because his current sentence is within statutory limits. Alternatively, it
    argues we should vacate and remand for the circuit court to enter a lawful sentence for DWI
    4th under 
    Ark. Code Ann. § 5-65-111
    (b)(3)(A) (Supp. 2013). “If an original sentence is
    illegal, it may be corrected at any time, even if it has been partially executed.” Miller v.
    State, 
    2022 Ark. App. 352
    , at 5. Further, a revocation of an illegal probation or suspended
    sentence cannot stand while the illegal sentence is in place. Dodds v. State, 
    2018 Ark. App. 86
    , 
    543 S.W.3d 513
    . The remedy is not to dismiss the proceedings, but to enter a legal
    sentence. E.g., State v. Webb, 
    373 Ark. 65
    , 
    281 S.W.3d 273
     (2008) (remanding for new
    8
    sentencing in state’s appeal from expungement where defendant had been eligible for neither
    probation nor expungement).
    Here, as in Burgess v. State, 
    2021 Ark. App. 54
    , the revocation involved a sentence
    that is specifically prohibited by statute. We reverse and dismiss the revocation proceedings
    and remand to the circuit court to sentence Conic within the statutory range for DWI 4th.
    
    Id.
    Reversed and remanded.
    GLADWIN and KLAPPENBACH, JJ., agree.
    Law Office of Boyd Connors, P.A., by: Cara Boyd Connors, for appellant.
    Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.
    9