The opinion
Cite as 2024 Ark. 176
SUPREME COURT OF ARKANSAS
No. CV-24-321
Opinion Delivered: December 12, 2024
TORRY RODGERS
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
V. [NO. 60CV-23-8667]
ARKANSAS PAROLE BOARD; JOHN HONORABLE MACKIE PIERCE,
FELTS, IN HIS OFFICIAL CAPACITY JUDGE
AS CHAIRMAN OF THE ARKANSAS
PAROLE BOARD; ARKANSAS
DEPARTMENT OF CORRECTION,
DIVISION OF CORRECTION; AND
DEXTER PAYNE, IN HIS OFFICIAL
CAPACITY AS DIRECTOR OF THE
ARKANSAS DIVISION OF
CORRECTION
APPELLEE REVERSED AND REMANDED.
KAREN R. BAKER, Associate Justice
Appellant, Torry Rodgers, appeals from the Pulaski County Circuit Court’s February
20, 2024, order denying his petition for declaratory judgment, injunctive relief, and
mandamus relief; denying his motion for judgment on the pleadings; and granting the cross-
motion for judgment on the pleadings filed by appellees, the Arkansas Parole Board (the
“Board”)1; John Felts, in his official capacity as Chairman of the Board; the Arkansas
Department of Correction, Division of Correction (the “ADC”); and Dexter Payne, in his
1
On January 1, 2024, the Arkansas Parole Board became the Arkansas Post-Prison
Transfer Board. See Ark. Code Ann. § 16-93-201(a)(1) (Supp. 2023); see also Kennedy v.
Ark. Parole Bd., 2024 Ark. 135, at 2, 696 S.W.3d 812, 814.
official capacity as Director of the Division of Correction (collectively referred to as
“appellees”). On appeal, Rodgers presents two points: (1) the circuit court erred by finding
that Act 683 of 2023 did not apply to him; and (2) alternatively, this court must remand to
the circuit court to rule without considering extrinsic evidence beyond the sentencing
order. We reverse and remand.
I. Facts and Procedural History
On June 20, 2018, Rodgers entered a negotiated plea of nolo contendere in the
Jefferson County Circuit Court to aggravated robbery, theft of property by threat of serious
physical injury, and felon in possession of a firearm, all of which were committed in March
2017.2 Rodgers was sentenced to concurrent terms of twelve years’ imprisonment for each
offense. Rodgers’s sentencing order included a notation that “DEF WILL SERVE 100%
ON AGG ROBBERY[.]” Rodgers’s negotiated plea agreement noted that “∆ will serve
100% on Agg Robbery[.]” At the time these offenses were committed, the applicable law
provided that
(b)(1) Any person who commits a violent felony offense . . . subsequent to
August 13, 2001, and who has previously been found guilty of or pleaded
guilty or nolo contendere to any violent felony offense . . . shall not be eligible
for release on parole by the board.
(2) As used in this subsection, “a violent felony offense or any felony sex
offense” means those offenses listed in § 5-4-501(d)(2).
Ark. Code Ann. § 16-93-609(b)(1)–(2) (Repl. 2016).
2
As part of this negotiated plea agreement, Rodgers also entered a guilty plea for a
separate count of felon in possession of a firearm that arose from subsequent felonious
conduct. See State v. Rodgers, Case No. 35CR-17-391.
2
In 2008, Rodgers was convicted of residential burglary in the Jefferson County
Circuit Court.3 Effective April 1, 2015, residential burglary was added to the enumerated
list of felonies involving violence found in Arkansas Code Annotated section 5-4-501(d)(2).
See Ark. Code Ann. § 5-4-501(d)(2)(A)(xi) (Supp. 2015); see also Act 895 of 2015 (“Act
895”). Following the passage of Act 895, the ADC interpreted this change to apply only to
residential burglaries that were committed after the date that the law went into effect. See
Op. Ark. Att’y Gen. No. 026 (2023). Stated differently, in implementing Act 895, the ADC
did not consider residential burglaries committed prior to April 1, 2015, to be “felonies
involving violence” for purposes of calculating parole eligibility under section 16-93-609.
Over seven years later, on May 24, 2022, the Arkansas Attorney General was asked
to determine whether a residential burglary committed before April 1, 2015, constituted a
prior “violent felony offense” so that an offender convicted of a subsequent violent felony
offense would be required to serve 100 percent of his or her sentence. See Op. Ark. Att’y
Gen. No. 010 (2022). In determining that the ADC’s interpretation of Act 895 was
inconsistent with the law, the Attorney General reasoned that
[g]ranted, residential burglary was not designated as a “felony involving
violence” until 2015. But critically . . . nothing in subsection 16-93-609(b)
suggests that to render an offender ineligible for parole after the commission
of another violent felony offense, the prior residential burglary must have
occurred after 2015[.]
See Op. Ark. Att’y Gen. No. 010.
Following the issuance of that opinion, the ADC abandoned the interpretation of
Act 895 that it had adhered to since 2015. See Op. Ark. Att’y Gen. No. 026 (2023). As a
3
See State v. Rodgers, Case No. 35CR-08-882A.
3
result, the ADC began treating residential burglaries committed prior to April 1, 2015, as
“felonies involving violence” for purposes of calculating parole eligibility in accordance with
sections 5-4-501(d)(2) and 16-93-609(b) and recalculated the parole-eligibility dates for
offenders that had been impacted by this new interpretation. Id. Although Rodgers had
negotiated a plea agreement, the ADC recalculated his parole eligibility in light of the 2022
attorney general opinion. Initially, the ADC had determined that Rodgers would be
required to serve 70 percent of his sentence before becoming parole eligible on his
aggravated-robbery conviction pursuant to section 16-93-618(a)(1)(C). However, following
the opinion, the ADC recalculated Rodgers’s parole-eligibility date to be the day that he
will complete 100 percent of his twelve-year sentence due to his 2008 residential-burglary
conviction.
In 2023, the General Assembly amended section 16-93-609 regarding the calculation
of parole eligibility in connection with residential burglaries. See Act 683 of 2023 (“Act
683”). Specifically, effective August 1, 2023, section 16-93-609 was amended to clarify that
[u]nless the sentencing order expressly designates that the defendant was
sentenced under this section, “a violent felony offense or any felony sex
offense” does not include residential burglary, § 5-39-201, committed before
April 1, 2015, unless the defendant was sentenced on or after May 24, 2022.
Ark. Code Ann. § 16-93-609(b)(2)(B) (Supp. 2023); see also Act 683, § 2.4
On November 21, 2023, Rodgers filed a petition for declaratory judgment,
injunctive relief, and mandamus relief with a copy of his sentencing order attached. In his
4
The General Assembly subsequently passed Act 659 of 2023, which further amended
section 5-4-501(d)(2). Specifically, effective January 1, 2024, residential burglary was
removed altogether from the definition of “felony involving violence” for offenses
committed on or after the Act’s effective date. See Act 659, §§ 17–18.
4
petition, Rodgers argued that Act 683 explicitly applied to his sentence because he was
sentenced prior to May 24, 2022, and his sentencing order did not expressly designate that
he had been sentenced under section 16-93-609 as required by Act 683. Rodgers asserted
that his prior residential-burglary conviction was therefore not a “felony involving
violence,” and the appellees were required to adjust his parole eligibility accordingly.
Rodgers argued that the circuit court was not permitted to look past the sentencing order
in making its determination on the basis of the express terms of Act 683.
On December 18, appellees filed a response to Rodgers’s petition with a copy of
Rodgers’s 2018 negotiated plea agreement attached. Appellees argued that Rodgers was not
entitled to the relief he sought because he failed to satisfy the prerequisites for a declaratory-
judgment action; Rodgers’s interpretation of Act 683 would lead to absurd results because
the sentencing court would have been expected to foresee a future amendment to the statute
that would require a sentencing order to contain a specific reference to section 16-93-609
in order to impose parole ineligibility; the notation on Rodgers’s sentencing order was, and
could only be, either a reference to the plea agreement or to the application of the then-
current version of section 16-93-609 to his prior felony convictions, or to both; and based
on the legislative findings and intent underlying Act 683, Rodgers was not an “affected
person” within the meaning of the Act because he was bound by a plea agreement that he
voluntarily entered and executed in which he expressly agreed to serve 100 percent of the
twelve-year sentence imposed for his aggravated-robbery conviction. Appellees also asserted
the defenses found in Rules 8(c) and 12(b) of the Arkansas Rules of Civil Procedure.
5
On December 28, Rodgers filed a motion for judgment on the pleadings, alleging
that the only contested issue in the case was whether the notation contained in his sentencing
order constituted an “express designation” that he had been sentenced under section 16-93-
609 as required by Act 683. According to Rodgers, the exception found in section 16-93-
609(b)(2)(B) that made residential burglary a “violent felony offense” for purposes of the
calculation of parole eligibility was limited to those defendants whose sentencing orders
contained an express reference to section 16-93-609, and a review of his sentencing order
alone demonstrated that there was no such reference therein.
On January 12, 2024, appellees filed a response and cross-motion for judgment on
the pleadings. Appellees argued that Rodgers’s motion should be denied because he entered
a plea agreement with full knowledge, as well as an express agreement, that the ADC would
determine that he was ineligible for parole based on his prior convictions. Appellees stated
that in the wake of the 2022 attorney general opinion, it was revealed that the ADC had
miscalculated the parole-eligibility dates for some inmates, some inmates had been released
due to the ADC’s misinterpretation of the law, and some inmates claimed that they had
pleaded guilty in reliance on the misinterpretation. Appellees argued that the legislative
history of Act 683 made clear that the law was meant to remedy issues for those “affected
persons” rather than to create a right to any remedies that did not exist before the Act
became effective. Therefore, in light of Rodgers’s plea agreement, appellees contended once
more that he was not an “affected person” within the meaning of Act 683. Appellees further
contended that the General Assembly did not prescribe any specific form that the express
designation in the sentencing order must take, and because there was no specific-language
6
requirement, the notation in Rodgers’s sentencing order was sufficient to provide notice
that he would be ineligible for parole. Additionally, appellees argued that Rodgers’s position
that his sentencing order must have presciently cited section 16-93-609 as the only way to
impose parole ineligibility was absurd because the order was entered before Act 683 became
effective.
On February 12, the circuit court held a hearing on Rodgers’s petition and the
competing motions for judgment on the pleadings. At the outset of the hearing, the circuit
court permitted appellees to substitute an unmarked copy of Rodgers’s plea agreement into
the record over Rodgers’s objection because the copy that was appended to appellees’
original response had been highlighted in certain areas. Additionally, the circuit court
allowed appellees to proffer into the record a certified copy of the transcript from Rodgers’s
plea hearing over Rodgers’s objection but explained that it was strictly for purposes of the
record and that the court would not review the transcript. Both parties argued in accordance
with their motions, and appellees also argued that if the circuit court was inclined to agree
with Rodgers, the case should be transferred to the Jefferson County Circuit Court for entry
of a nunc pro tunc sentencing order so that Rodgers’s order would speak the truth that
Rodgers was intended to serve 100 percent of his aggravated-robbery sentence due to his
prior residential-burglary conviction.
On February 20, the circuit court entered an order denying Rodgers’s petition for
declaratory judgment, injunctive relief, and mandamus relief and motion for judgment on
the pleadings and granting appellees’ cross-motion for judgment on the pleadings. The
circuit court’s order stated that “[t]he Court, having considered the pleadings, arguments of
7
counsel, and relevant statutes and case law, finds . . . [appellees’] arguments are well-reasoned
and are adopted by the Court in their entirety.”
This timely appeal followed.
II. Points on Appeal
A. Preliminary Issues
For his first point on appeal, Rodgers contends that the circuit court erred by finding
that Act 683 did not apply to him. However, as an initial matter, we must first address two
preliminary grounds upon which appellees contend that our review of the merits of
Rodgers’s appeal is precluded.
1. Separate and independent grounds
First, appellees contend that Rodgers failed to specifically address most of appellees’
arguments below, including arguments that Rodgers failed to meet the prerequisites for
declaratory and mandamus relief; that Act 683 is inapplicable to Rodgers because he is
bound by his negotiated plea and is not one of the “affected persons” under Act 683; or,
alternatively, that any mistake or omission in expressly designating that Rodgers’s prior
residential-burglary conviction was a violent felony for parole purposes may be corrected
by nunc pro tunc entry of an amended sentencing order. Appellees argue that we should
affirm the circuit court without addressing the merits of Rodgers’s appeal because the circuit
court adopted all of the arguments they made below in denying declaratory relief, and
therefore, Rodgers’s failure to address all of the grounds of the adopted ruling is fatal to his
appeal.
8
It is true that when a circuit court bases its decision on more than one independent
ground and the appellant challenges fewer than all of those grounds on appeal, we will affirm
without addressing any of the grounds. See, e.g., Evangelical Lutheran Good Samaritan Soc’y v.
Kolesar, 2014 Ark. 279, at 6. However, having conducted a close review of the record, we
are not persuaded by appellees’ position.
In their initial response to Rodgers’s petition, appellees arguably raised the argument
that Rodgers failed to satisfy the prerequisites for a declaratory-judgment action; however,
discussion of this argument was perfunctory, and it was not developed as a basis for appellees’
cross-motion for judgment on the pleadings either in the cross-motion or during the
February 12 hearing. While appellees contend that this was a valid argument upon which
the circuit court made its ruling based on the language of the final order, and Rodgers was
therefore required to address it on appeal, we decline the invitation to bypass the merits of
Rodgers’s arguments on the grounds that he did not challenge this point. To conclude
otherwise would compel us to affirm the circuit court based on Rodgers’s failure to address
each of the other arguments––ostensibly raised yet left undeveloped––in appellees’ initial
response, including every defense listed in Rules 8(c) and 12(b) of the Arkansas Rules of
Civil Procedure, that could have been a basis for the circuit court to either rule in favor of
appellees or otherwise dismiss the suit outright.
Next, appellees contend that Rodgers failed to challenge their argument that Act 683
was inapplicable to him because he is bound by his negotiated plea and is therefore not one
of the “affected persons” under Act 683. However, we are satisfied that Rodgers does, in
fact, address this issue on appeal, as it is a part of appellees’ statutory-interpretation analysis.
9
As will be discussed in more detail below, Rodgers responds to appellees’ position by
arguing that he is an “affected person” within the meaning of Act 683 because his sentencing
order, which is the only item that may be reviewed in making a determination regarding
the applicability of Act 683, does not contain an express designation that he was sentenced
under section 16-93-609.
Alternatively, appellees assert that Rodgers failed to challenge their argument that
any mistake or omission in expressly designating that his prior residential-burglary
conviction was a violent felony for parole purposes may be corrected by nunc pro tunc
entry of an amended sentencing order. However, the circuit court clearly did not rely on
this argument as a basis for its ruling because it did not order entry of an amended sentencing
order. Therefore, we likewise decline to affirm the circuit court on this basis.
2. Prerequisites for declaratory relief
Next, appellees argue that Rodgers failed to meet the prerequisites for declaratory
relief. Specifically, appellees contend that convicted offenders are typically barred from using
declaratory-judgment actions to collaterally attack plea agreements, sentences, or parole-
eligibility determinations. Appellees aver that we have only gone as far as holding that a
declaratory judgment action may be appropriate if the ADC has acted ultra vires, has acted
beyond its legal authority, or has failed to adhere to a parole statute, but that Rodgers did
not allege any such actions by the ADC. Appellees further assert that even if Rodgers is not
directly barred from collaterally challenging a parole eligibility issue, the denial of his petition
must still be affirmed because he failed to meet all the prerequisites for declaratory relief.
10
That is, appellees now argue that Rodgers has failed to demonstrate that a justiciable
controversy is ripe for judicial determination in his case.
However, in light of our review of the record, we are not persuaded by appellees’
position. Appellees are correct that we have held that a criminal defendant may not use a
declaratory-judgment action or a suit for an extraordinary writ to challenge a criminal
conviction, sentence, or parole eligibility. See, e.g., Manning v. Norris, 2011 Ark. 439, at 2
(per curiam). Despite that, we have also held that declaratory and mandamus relief may be
appropriate if the ADC has acted ultra vires, has acted beyond its legal authority, or has
failed to adhere to a parole statute. See, e.g., Schuldheisz v. Felts, 2024 Ark. 137, at 3, 696
S.W.3d 817, 820. In the present case, Rodgers alleged in his petition that the ADC
inaccurately calculated his parole-eligibility date and must recalculate it in light of Act 683—
a parole statute. Thus, Rodgers’s petition is not an improper collateral attack; rather, it is
the appropriate vehicle for his claims. See, e.g., Ark. Parole Bd. v. Johnson, 2022 Ark. 209,
654 S.W.3d 820 (holding that declaratory judgment and mandamus are the appropriate
vehicles for an inmate to bring a parole-calculation challenge). Additionally, our review of
the record leads us to conclude that Rodgers’s case clearly presents a justiciable controversy
that is ripe for determination. See Robinson v. Payne, 2024 Ark. 94, at 3–4, 688 S.W.3d 409,
413 (holding that declaratory relief may be granted if it has been established that (1) there is
a justiciable controversy; (2) the controversy is between persons whose interests are adverse;
(3) the party seeking relief has a legal interest in the controversy; and (4) the issue involved
11
in the controversy is ripe for judicial determination). Based on the foregoing, we likewise
decline to affirm the circuit court’s order on this basis.5
B. Statutory Interpretation
Having determined that this case is properly before us, we turn to Rodgers’s
arguments on appeal. As discussed above, Rodgers first argues that the circuit court erred
by finding that Act 683 did not apply to him.
A motion for judgment on the pleadings is appropriate if the pleadings show on their
face that there is no merit to the suit. Johnson, 2022 Ark. 209, at 4–5, 654 S.W.3d at 823.
When reviewing a grant of judgment on the pleadings, we view the facts alleged in the
complaint as true and in the light most favorable to the party seeking relief. Id. We will
affirm the circuit court’s decision in the absence of an abuse of discretion. Id. However, we
review issues of statutory interpretation de novo, as it is for this court to determine the
meaning of a statute. Id. The basic rule of statutory construction is to give effect to the intent
of the legislature by giving words their usual and ordinary meaning. Thurston v. Safe Surgery
Ark., 2021 Ark. 55, at 8–9, 619 S.W.3d 1, 7–8. When a statute is clear, it is given its plain
meaning, and we will not search for legislative intent; rather, that intent must be gathered
from the plain meaning of the language used. Id. In other words, if the language of the
statute is plain and unambiguous, the analysis need go no further. Id. We construe statutes
5
Appellees also assert that general contract principles bolster their position because
Rodgers’s negotiated plea agreement bars him from seeking declaratory relief. However,
the determination of parole eligibility is solely within the province of the ADC, which must
act in compliance with applicable parole statutes. See Felts, supra. As discussed above,
declaratory and mandamus relief may be appropriate if the ADC has failed to adhere to a
parole statute, which is what Rodgers has asserted. See id.
12
so that no word is left void, superfluous, or insignificant, and we give meaning to every
word in the statute, if possible. Id. Furthermore, we will not read into a statute language
that was not included by the legislature. Johnson, 2022 Ark. 209, at 5, 654 S.W.3d at 823.
As discussed above, the amended version of section 16-93-609 provides in pertinent
part:
Unless the sentencing order expressly designates that the defendant was
sentenced under this section, “a violent felony offense or any felony sex
offense” does not include residential burglary, § 5-39-201, committed before
April 1, 2015, unless the defendant was sentenced on or after May 24, 2022.
Ark. Code Ann. § 16-93-609(b)(2)(B) (Supp. 2023); see also Act 683, § 2.
As he did below, Rodgers points to the plain language of the preceding subsection
and contends that it applies directly to his case because he committed residential burglary
before April 1, 2015, and he was sentenced for the aggravated robbery at issue in this case
prior to May 24, 2022. Rodgers asserts that there is no designation within his sentencing
order, whether express or otherwise, to section 16-93-609 as required by the statute, and
he is therefore an “affected person” whose parole eligibility Act 683 was intended to
remedy, and he is entitled to have his parole eligibility recalculated under the Act. Rodgers
argues once more that, in determining whether a given sentencing order contains an express
designation to section 16-93-609, we must look solely to that sentencing order. Rodgers
asserts that the notation in his sentencing order did not constitute an express designation to
any statute at all.
Appellees respond that the circuit court correctly ruled that the notation in Rodgers’s
sentencing order served to expressly designate that he had been sentenced under section 16-
93-609. First, appellees argue that while Act 683 requires an express designation on any
13
sentencing order intending to invoke a residential burglary committed prior to April 1,
2015, as a violent felony offense, the Act does not prescribe the exact form the express
designation must take. Specifically, appellees contend that the plain meaning of “expressly
designates” is broad and does not require a direct citation to section 16-93-609, and that
Rodgers’s position to the contrary would lead to an absurd result. Second, relying on the
legislative findings and intent underlying Act 683, appellees insist that Rodgers is not an
“affected person” to whom the Act was intended to apply. Given Rodgers’s negotiated plea
agreement, appellees argue that he failed to demonstrate that ADC’s misinterpretation of
the law affected him because he knew all along that he would serve 100 percent of his
aggravated-robbery sentence.
We agree with Rodgers’s interpretation of section 16-93-609. It is undisputed that,
in order for residential burglary to constitute a prior “violent felony offense” for purposes
of calculating parole eligibility, the plain language of section 16-93-609(b)(2)(B) requires
that a defendant’s “sentencing order expressly designate[] that the defendant was sentenced
under this section[.]” The primary disagreement between Rodgers and appellees is whether
the notation in Rodgers’s sentencing order constitutes an express designation. As appellees
correctly note, in accordance with the plain meaning of the word, something is “express”
when it is “[c]learly and unmistakably communicated; stated with directness and clarity.”
See Black’s Law Dictionary 724 (12th ed. 2024). Further, to “designate” commonly means to
“represent or refer to (something) using a particular symbol, sign, name, etc.” See id at 561.
As discussed above, Rodgers’s sentencing order contained the following notation: “DEF
WILL SERVE 100% ON AGG ROBBERY[.]” This notation does not constitute a direct
14
citation to section 16-93-609, nor does it clearly or unmistakably represent that Rodgers
had been sentenced under that section. Contrary to appellees’ argument that the statute does
not prescribe the exact form the express designation must take or set forth any magic words
that must be used, the meaning of “express” is unambiguous. Further, the language of the
statute unequivocally limits our review to Rodgers’s sentencing order alone as opposed to
taking Rodgers’s plea agreement, plea hearing, or any other evidence into consideration. As
such, we are unpersuaded by appellees’ position that, within the context of Rodgers’s
negotiated plea agreement and his prior criminal history, the notation in his sentencing order
was a clear and unmistakable reference to the applicability of section 16-93-609.
Additionally, we disagree that this conclusion leads to absurd results. On the contrary,
it is undisputed that the appropriate treatment of residential burglaries committed prior to
the effective date of Act 895 was uncertain for purposes of calculating parole eligibility until
the General Assembly enacted Act 683. It is clear from the plain language of Act 683 that
the Act was meant to dispel any further confusion by clarifying that a prior residential
burglary would only be considered a “violent felony offense” within the meaning of section
16-93-609 if a defendant’s sentencing order contained an express designation to that section.
Therefore, in accordance with the plain language of the statute, Rodgers’s residential-
burglary conviction is not a “violent felony offense” for purpose of calculating his parole
eligibility. We are likewise unpersuaded by appellees’ argument that Rodgers is not an
“affected person” to whom the Act applies. In support of this position, appellees rely on the
admittedly uncodified legislative findings and intent underlying Act 683, which provide that
“[i]t is the intent of the General Assembly that this act apply solely to the recalculation of
15
parole eligibility for the affected persons and not create a right to a resentencing proceeding,
a new trial, other remedy, or cause of action that did not exist before the effective date of
this act.” Act 683, § 1(b). As they did below, appellees assert that the Act’s applicability is
clearly designed to remedy the ADC’s miscalculation of parole eligibility only for those
convicted offenders who experienced a detrimental impact as a result of the ADC’s
erroneous interpretation of Act 895. However, as we concluded above, the language of
section 16-93-609 is so plain that judicial construction is limited to what the statute itself
provides. Notably, nothing in the language of the statute imposes a limitation such as the
one appellees suggest, and as appellees note, “affected person” within the meaning of Act
683 is not a statutorily defined term. Consistent with our rules of statutory interpretation,
our review is limited to the plain language of section 16-93-609, which supports Rodgers’s
position.
Alternatively, appellees argue that a nunc pro tunc correction of Rodgers’s
sentencing order would resolve any mistake or omission in the original sentencing order so
that it speaks the truth. Specifically, appellees contend that the notation in Rodgers’s
sentencing order that “DEF WILL SERVE 100% ON AGG ROBBERY” was meant to
reference the applicability of section 16-93-609(b) and that the absence of a direct citation
to the statute was, at most, an inadvertent mistake or omission. It is true that a “circuit court
has the power to correct clerical errors nunc pro tunc so that the record speaks the truth.
Pursuant to Rule 60(b) of the Arkansas Rules of Civil Procedure, a circuit court may at any
time correct clerical mistakes in judgments, decrees, orders, or other parts of the record and
errors therein arising from oversight or omission.” Barnett v. State, 2020 Ark. 181, at 2, 598
16
S.W.3d 835, 836 (internal citations omitted). However, importantly, this power is to make
the record speak the truth, but not to make it speak what it did not speak but ought to have
spoken. State v. Rowe, 374 Ark. 19, 25, 285 S.W.3d 614, 619 (2008). Contrary to appellees’
assertions, it is not clear from the record that the absence of an express reference to section
16-93-609 in Rodgers’s sentencing order was simply a clerical error. Therefore, we are not
persuaded that entry of a nunc pro tunc sentencing order is proper in the present case.
In sum, we hold that the circuit court erred in its interpretation of Arkansas Code
Annotated section 16-93-609(b)(2)(B). Accordingly, we reverse and remand. Having found
that the circuit court’s erroneous interpretation and application of the plain and
unambiguous language of this statute warrants reversal, we need not consider Rodgers’s
alternative argument that we must remand to the circuit court to rule without considering
extrinsic evidence beyond the sentencing order.
Reversed and remanded.
WOMACK and WEBB, JJ., dissent.
SHAWN A. WOMACK, Justice, dissenting. Dismissal of the case is proper pursuant
to article 5, section 20 of the Arkansas Constitution. 1 Indeed, absent an express
constitutional provision to the contrary, the State can never properly be a defendant in any
of its courts.2 Here, Rodgers improperly made the State a defendant when he petitioned
1
See Thurston v. League of Women Voters of Ark., 2022 Ark. 32, at 17, 639 S.W.3d 319,
327 (Womack, J., dissenting).
2
Id.
17
for mandamus, declaratory, and injunctive relief in a new civil action below, 60CV-23-
8667.3 Instead, he should have petitioned in his underlying criminal case, 35CR-17-252.
Accordingly, this court, like the circuit court below, lacks jurisdiction. For these reasons,
the circuit court’s order must be reversed and the case dismissed.
BARBARA W. WEBB, Justice, dissenting. The simplicity of this case has
apparently befuddled my learned colleagues. Here are the legally significant facts, which are
all commendably listed in the majority opinion:
1) Rodgers committed residential burglary in 2008.
2) Effective April 1, 2015, the General Assembly amended Arkansas Code
Annotated section 5-4-501(d)(2) (Supp. 2015) to add residential burglary
to the list of felonies involving violence for the purpose of making a
convicted felon ineligible for parole pursuant to Arkansas Code Annotated
section 16-93-609(b)(1)–(2) (Repl. 2016).
3) On June 20, 2018, Rodgers entered a negotiated plea of nolo contendere
in the Jefferson County Circuit Court to aggravated robbery, theft of
property by threat of serious physical injury, and felon in possession of a
firearm, all of which were committed in March 2017.
4) In accordance with section 16-93-609(b)(1)–(2), the parole-eligibility
statute in effect when Rodgers committed aggravated robbery, the
sentencing court designated on Rodgers’s sentencing order: “DEF WILL
SERVE 100% ON AGG ROBBERY[.]”
5) Under these facts, the Arkansas Department of Correction (ADC)
concluded that Rodgers was not eligible for parole.
It is so well settled as to be axiomatic that parole eligibility depends on the statute
that is in effect when the defendant committed the offense. Caroll v. Payne, 2023 Ark. 125,
674 S.W.3d 770; Jenkins v. Payne, 2023 Ark. 184, 678 S.W.3d 770; Sims v. Payne, 2023
3
See Perry v. Payne, 2022 Ark. 112, at 5 (Womack, J., dissenting) (holding Article 5,
section 20 required the dismissal of the appeal from denial of writ of mandamus and
declaratory judgment).
18
Ark. 187, 678 S.W.3d 766; Rogers v. Ark. Dep’t of Corr., 2022 Ark. 19, 638 S.W.3d 265;
Pitts v. Hobbs, 2013 Ark. 457; Aguilar v. Lester, 2011 Ark. 329. This principle of law, ignored
by the majority, is of pivotal importance for two reasons.
First and foremost, because Rodgers’s eligibility for parole depends on the parole-
eligibility statute in effect when he committed aggravated robbery, this court should be led
to the inexorable conclusion that Rodgers is not parole eligible.
Second, we review de novo a circuit court’s decision that there is no justiciable
controversy. Rogers v. Knight, 2017 Ark. 267, 527 S.W.3d 719. In concluding that it was
“not persuaded” that Rodgers failed to establish his entitlement to declaratory judgment,
the majority failed to account for the fact that Rodgers’s parole eligibility based on the parole
statute in effect at the time he committed aggravated robbery was properly applied. I am
mindful that declaratory judgment and mandamus relief “may” be appropriate if the ADC
has acted ultra vires, has acted beyond its legal authority, or has failed to adhere to a parole
statute. However, for the foregoing reasons, the sentencing court properly applied section
16-93-609(b) and the ADC correctly calculated Rodgers’s parole eligibility. Accordingly,
the ADC has not acted ultra vires, has not acted beyond its legal authority, and has not failed
to adhere to a parole statute. Therefore, the circuit court did not err in dismissing Rodgers’s
complaint for declaratory judgment. Harmon v. Noel-Emsweller, 2022 Ark. 26. As Justice
Wood stated in writing for the majority, when the ADC has properly calculated parole
eligibility, it has not acted ultra vires and consequently, there is no justiciable controversy.
Id. Therefore dismissal of a declaratory-judgment case is proper. Id. It is apparent that the
majority’s conclusion to the contrary is based entirely on Rodgers’s assertion that the ADC
19
failed to properly calculate his parole eligibility. This dubious assertion rests on Rodgers’s
absurd argument that the sentencing court erred by failing to satisfy the then nonexistent
requirement imposed almost five years later by Act 683 of 2023 that the “sentencing order
expressly designate[] that the defendant was sentenced under this section[.]”
Moving forward, the majority has inexplicably fixated on a requirement created by
Act 683 of 2023 that a defendant’s “sentencing order expressly designate[] that the defendant
was sentenced under this section[.]” At Rodgers’s behest, the majority embarked on a fool’s
errand of statutory construction that is both unnecessary and inartful. Without conceding
that this case even required statutory construction, it is apparent that the majority failed to
analyze Act 683 correctly. In this case a more holistic approach to statutory interpretation,
such as the one used by Justice Alito in Bostock v. Clayton Cnty., 590 U.S. 644 (2020), is
more appropriate, as discussed more fully in my dissent in the companion case, Wright v.
Arkansas Post-Prison Transfer Board, et al.
Before parsing the meaning of “express,” the majority would have been better advised
to delve more deeply into the meaning of “affected person.” As the majority states, “[T]he
basic rule of statutory construction is to give effect to the intent of the legislature by giving
words their usual and ordinary meaning.” By the plain wording of Act 683, the amended
version of section 16-93-609(b) applies only to “affected persons.” In pertinent part, Act
683 states:
(b) It is the intent of the General Assembly that this act apply solely to
the recalculation of parole eligibility for the affected persons and not create a
right to a resentencing proceeding, a new trial, other remedy, or cause of
action that did not exist before the effective date of this act.
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Contrary to the majority’s conjecture, the date on which Rodgers was sentenced did
not automatically make him an “affected person” as contemplated by Act 683. The genesis
of Act 683 can be traced to an Attorney General Opinion issued in 2022 which opined that
the ADC had been misinterpreting section 16-93-609(b) concerning when residential
burglary could be considered a felony involving violence for the purpose of calculating
parole eligibility. Aware of the ADC’s interpretation, certain criminal defendants had relied
on it to their detriment in making plea agreements, believing that they would not be
ineligible for parole. These defendants were the “affected persons” contemplated by Act
683. Before the circuit court, the State argued successfully that Rodgers was not a member
of the class of affected persons because his plea agreement recited that he would have to
serve 100 percent of his twelve-year sentence. In short, the State argued that Rodgers got
exactly what he bargained for.
The phrase “affected person” is at least ambiguous, which triggers an in-depth search
for legislative intent. Ortho-McNeil-Janssen Pharms., Inc. v. State, 2014 Ark. 124, 432 S.W.3d
563. Writing for the majority, Justice Baker stated:
“[W]hen a statute is ambiguous, . . . we must interpret it according to the
legislative intent, and its review becomes an examination of the whole act.”
Johnson v. Dawson, 2010 Ark. 308, at 5, 365 S.W.3d 913, 916; see also MacSteel
Div. of Quanex v. Ark. Okla. Gas Corp., 363 Ark. 22, 30, 210 S.W.3d 878,
883 (2005) (observing “that this court will not read into a statute a provision
that simply was not included by the General Assembly”). “The basic rule of
statutory construction is to give effect to the intent of the legislature.” Dep’t
of Human Servs. & Child Welfare Agency Review Bd. v. Howard, 367 Ark. 55,
62, 238 S.W.3d 1, 6 (2006).
21
Id. at 10–11, 432 S.W.3d 571. Accordingly, it is untenable that the majority has chosen to
begin and end its statutory construction by focusing on the meaning of a single word:
“express.”
Likewise, our rules of statutory construction require this court to construe Act 683
in a way that harmonizes the Act with our sentencing statutes. In Act 683, the General
Assembly stated the following, in pertinent part:
(b) It is the intent of the General Assembly that this act apply solely to the
recalculation of parole eligibility for the affected persons and not create a right
to a resentencing proceeding, a new trial, other remedy, or cause of action that did not
exist before the effective date of this act.
(Emphasis supplied.) Before the passage of Act 683, Rodgers had no cause of action for
collaterally attacking his plea agreement. The majority has legislated from the bench to create
one.
Finally, without conceding that the sentencing court was required to anticipate the
passage of Act 683 five years after Rodgers was sentenced, the notation on Rodgers’s
sentencing order, “DEF WILL SERVE 100% ON AGG ROBBERY,” is an express
designation that Rodgers was sentenced under section 16-93-609. The substance of that
section is that defendants with prior violent felonies would be ineligible for parole.
In rejecting the State’s argument on this point, the majority apparently credited
Rodgers’s argument that the notation “DEF WILL SERVE 100% ON AGG ROBBERY”
did not constitute an express designation to any statute, let alone Ark. Code Ann. § 16-93-
609, because the notation could refer to numerous statutes that require service of a sentence
without any opportunity for parole. Rodgers specifically cites Ark. Code Ann. §§ 5-4-
501(c)(1), (c)(3), (d)(1); 16-93-604; and 16-93-609 to support his contention that other
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statutes could yield the combination of years of incarceration with no possibility of parole.
It is unsettling that the majority did not summarily reject this obvious prevarication because
only the version of section 16-93-609 that was in effect at the time of Rodgers’s sentencing
could account for the requirement that he serve 100 percent of his twelve-year sentence for
aggravated robbery.4
4
Arkansas Code Annotated section 5-4-501(c)(1) is a sentencing statute that imposes
a minimum sentence of forty years. Forty is greater than twelve. The statute states:
Except as provided in subdivision (c)(3) of this section, a defendant
who is convicted of a serious felony involving violence enumerated in
subdivision (c)(2) of this section and who previously has been convicted of
one (1) or more of the serious felonies involving violence enumerated in
subdivision (c)(2) of this section may be sentenced to pay any fine authorized
by law for the serious felony involving violence conviction and shall be
sentenced to imprisonment for a term of not less than forty (40) years nor
more than eighty (80) years, or life.
(2) As used in this subsection, “serious felony involving violence” means:
(A) Any of the following felonies:
(i) Murder in the first degree, § 5-10-102;
(ii) Murder in the second degree, § 5-10-103;
(iii) Kidnapping, § 5-11-102, involving an activity making it a Class Y felony;
(iv) Aggravated robbery, § 5-12-103;
(v) Terroristic act, § 5-13-310, involving an activity making it a Class Y felony;
(vi) Rape, § 5-14-103;
(vii) Sexual assault in the first degree, § 5-14-124;
(viii) Causing a catastrophe, § 5-38-202(a);
(ix) Aggravated residential burglary, § 5-39-204;
(x) Aggravated assault upon a law enforcement officer or an employee of a
correctional facility, § 5-13-211, if a Class Y felony;
(xi) Capital murder, § 5-10-101; or
(xii) Unlawful discharge of a firearm from a vehicle, § 5-74-107; or
Ark. Code Ann. § 5-4-501(c)(3) concerns sexual offenses committed against victims
less than fourteen years of age:
A defendant who is convicted of rape, § 5-14-103, or sexual assault in
the first degree, § 5-14-124, involving a victim less than fourteen (14) years
of age and who has previously been convicted of one (1) or more of the
serious felonies involving violence enumerated in subdivision (c)(2) of this
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An essential component of justice is the punishment of the guilty in accordance with
the law. This case should be affirmed. I therefore respectfully dissent.
section may be sentenced to pay any fine authorized by law for the rape or
sexual assault in the first degree conviction and shall be sentenced to life in
prison without the possibility of parole.
Ark. Code Ann. § 16-93-604 concerns felonies committed between April 1, 1977,
and April 1, 1983. Rodgers was born December 14, 1990. Arkansas Code Annotated section
16-93-609 is, of course, the code section amended by Act 283.
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