Jacob Townsend v. State of Arkansas , 2023 Ark. App. 356 ( 2023 )

Cite as 2023 Ark. App. 356ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-23-69
Opinion Delivered August 30, 2023
JACOB TOWNSEND
APPELLANT APPEAL FROM THE HEMPSTEAD
COUNTY CIRCUIT COURT
V. [NO. 29CR-21-223]
HONORABLE JOE SHORT, JUDGE
STATE OF ARKANSAS
APPELLEE REVERSED AND DISMISSED
STEPHANIE POTTER BARRETT, Judge
Jacob Townsend appeals the revocation of his suspended imposition of sentence (SIS)
by the Hempstead County Circuit Court. He argues that the revocation must be reversed
and dismissed because it was based on alleged violations that occurred prior to entry of the
sentencing order. We agree.
Townsend was charged with possession of methamphetamine (less than two grams)
on December 1, 2021. In a hearing on January 10, 2022, Townsend pleaded guilty to the
charge in exchange for a five-year SIS. The sentencing order reflecting the guilty plea and
the five-year SIS was filed on February 4, 2022. On January 25, 2022, the State filed a
petition to revoke Townsend’s SIS, alleging that on January 13, 2022, Townsend committed
the offenses of possession of methamphetamine or cocaine with intent to deliver and
tampering with physical evidence, and he was in possession of methamphetamine and drug
paraphernalia.
On August 16, Townsend moved to dismiss the revocation petition, arguing that as
of the date of the filing of the revocation petition, no sentencing order had yet been filed.
At the revocation hearing on September 19, Townsend’s counsel argued that while the
legislature had amended Arkansas Code Annotated section 5-4-307(a) (Supp. 2021) in 2019
to provide that a period of SIS commences to run when the circuit court pronounces the
probation or sentence in the courtroom or upon entry of a sentencing order, whichever
occurs first, caselaw and Administrative Order No. 2 do not allow revocation for a sentence
for which an order had not yet been entered. The State argued that the legislature amended
the statute as a matter of public policy and that Administrative Order No. 2 was significant
only for administrative purposes. The circuit court denied Townsend’s motion to dismiss,
finding that the amended statute, most likely promulgated in response to Burnett v. State,
2018 Ark. App. 220, superseded Administrative Order No. 2. The revocation hearing
proceeded, the circuit court revoked Townsend’s SIS, and Townsend was sentenced to five
years’ imprisonment. This appeal followed.
On appeal, Townsend makes the same argument he made in his motion to dismiss—
that the revocation of his SIS must be reversed and dismissed because it was based on alleged
violations that occurred before the judgment was filed because Administrative Order No. 2
and caselaw are clear that an SIS does not begin until the judgment is filed, regardless of the
existence of Arkansas Code Annotated section 5-4-307(a).
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In Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003), Bradford, pursuant to a
negotiated plea agreement, entered a plea of guilty to three separate felonies; the prosecutor
recommended five years’ incarceration on each charge, with the sentences to run
concurrently. In open court, the circuit court pronounced judgment of five years on each
count, with the sentences to be served concurrently, but no judgment and commitment
order was filed. Ten days later, the circuit court revisited its decision in Bradford’s case,
ordered that the sentences be served consecutively, and entered a judgment and commitment
order to that effect. Bradford appealed, arguing that he was entitled to rely on the sentence
pronounced in open court pursuant to Arkansas Code Annotated section 16-65-121 (Supp.
2001), which provided, “All judgments, orders, and decrees rendered in open court by any
court of record in the State of Arkansas are effective as to all parties of record from the date
rendered and not from the date of entry of record.” In rejecting Bradford’s argument, our
supreme court held that the statute at issue had been superseded in civil matters by Arkansas
Rule of Civil Procedure 58, which provides that a judgment is effective upon entry of record
and that the same principle held true for criminal judgments, citing Johnison v. State, 330
Ark. 381, 953 S.W.2d 883 (1997). Our supreme court held that, in accordance with
Administrative Order No. 2, judgment and commitment orders are effective upon entry of
record and that because section 16-65-121 conflicted directly with appellate rules,
Administrative Order No. 2, and our caselaw, it was superseded.
In Burnett, supra, Kabal Burnett appealed the revocation of her probation for acts
committed hours before the sentencing order was entered; the State conceded error, and
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this court reversed and dismissed the revocation. In so holding, this court cited Bradford,
supra, which held that judgment and commitment orders, in accordance with Administrative
Order No. 2, are effective upon entry of record. In reversing and dismissing Burnett’s
revocation, this court also cited Garduno-Trejo v. State, 2010 Ark. App. 779, 379 S.W.3d 692,
a case in which the circuit court revoked Garduno-Trejo’s probation and SIS for conduct
that occurred after he pleaded guilty to two drug offenses but two days before the judgment
and disposition order was entered; the revocation was reversed on appeal, with this court
holding that the suspended sentence and probation were not in effect on the day they were
violated because the judgment was not entered of record until two days later.
The legislature amended Arkansas Code Annotated section 5-4-307(a) in 2019 to
provide, “[A] period of suspension or probation commences to run when the circuit court
pronounces the probationer’s sentence in the courtroom or upon the entry of a sentencing
order, whichever occurs first.”
Townsend argues that the holdings in Bradford and Burnett mandate that the
revocation of his SIS must be reversed and dismissed because a judgment is effective on entry
of record, which occurs when the judgment is filed, and the sentencing order placing him
on SIS was not entered of record at the time the alleged conduct that the revocation was
based on occurred.
The State argues that Arkansas Code Annotated section 5-4-307(a) is not superseded
by Arkansas Rule of Civil Procedure 58 and Administrative Order No. 2 because, unlike the
statute superseded in the Bradford decision, this statute does not conflict with the rule or the
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order, nor does it compromise their primary purpose and effectiveness. The State argues
that section 5-4-307(a) “relates in no way to when a judgment, order, or decree is considered
entered or effective.” We agree; this statute only determines when a period of SIS or
probation begins, not when it becomes effective for revocation purposes. While it is true
that the SIS could begin when announced in open court even if the sentencing order was
not entered until a month later, the order is not considered entered or effective for purposes
of revocation proceedings until the sentencing order is filed.
The State next argues that if there is a conflict between section 5-4-307(a) and our
appellate court rules and administrative orders, we must defer to the legislature on public-
policy grounds. This argument has no merit. First, as stated above, section 5-4-307(a) does
not conflict with Administrative Order No. 2 or our caselaw. Second, even if there was a
conflict, the appellate courts do not defer to statutes that are at odds with our appellate court
rules. In State v. Sypult, 304 Ark. 5, 7–8, 800 S.W.2d 402, 404 (1990), our supreme court
discussed the dissonance with statutes conflicting with court rules:
In Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990), and St. Clair v. State,
301 Ark. 223, 793 S.W.2d 835 (1990), we reaffirmed our inherent rule-making power
as identified in Ricarte [v. State, 290 Ark. 100, 717 S.W.2d 488 (1986)]; however, we
went on to say that we share this power with the General Assembly and that we will
defer to its authority where legislation involving matters of public policy conflicts with
court rules. See also Lyons v. Forrest City Mach. Works, Inc., 301 Ark. 559, 785 S.W.2d
220 (1990).
Section 12-12-511(a) is clearly grounded in strong public policy—the protection
of child-abuse victims. So, once again, we are faced with sharing our rule-making
powers with the legislature—this time involving the physician and psychotherapist-
patient privilege. In doing so, we retreat from the positions we have taken in Curtis
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and St. Clair, supra, and redefine the parameters of our “shared” rule-making power
with the legislature.
It is obvious that, in the interests of promoting important public policies and
interests of the state, legislation enacted in this spirit will, on occasion, bring about
conflict with rules of the court. It is equally obvious, however, that literal application
of our decisions in Curtis and St. Clair to cases such as the one before us, could well
open the door to total abrogation of the rules of evidence and procedure we deem
vital to the interests and policies inherent in the judicial process. To protect what we
hold inviolate we now declare that we will defer to the General Assembly, when
conflicts arise, only to the extent that the conflicting court rule’s primary purpose and
effectiveness are not compromised; otherwise, our rules remain supreme.
The State next argues that to the extent Administrative Order No. 2 and Rule 58 of
the Arkansas Rules of Civil Procedure supersede Arkansas Code Annotated section 5-4-
307(a), they only do so as to probation. This is untrue. The statute clearly refers to a period
of suspension or probation, and we do not find that there is a conflict between Arkansas
Code Annotated section 5-4-307(a), which states when the time period begins, and
Administrative Order No. 2, which states when the order is effective. The order must be
effective before the period of probation or suspended imposition of sentence may be
revoked.
Arkansas Code Annotated section 5-4-307(a) as amended is not in direct conflict with
Administrative Order No. 2 and our caselaw. Townsend’s SIS cannot be revoked because at
the time of the conduct that was used to revoke his SIS, the sentencing order was not entered
of record. Although his SIS commenced upon pronouncement in the courtroom, it may
not be revoked unless the sentencing order is entered of record. Therefore, the revocation
in hereby reversed and dismissed.
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Reversed and dismissed.
GLADWIN and HIXSON, JJ., agree.
Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.
Tim Griffin, Att’y Gen., by: Walker K. Hawkins, Ass’t Att’y Gen., for appellee.
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