The opinion
Cite as 2019 Ark. 395
Digitally signed by Susan P.
Williams
SUPREME COURT OF ARKANSAS
No. CR-18-860
Reason: I attest to the accuracy
and integrity of this document
Date: 2021.07.13 14:28:48 -05'00' Opinion Delivered December 12, 2019
STATE OF ARKANSAS
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. FOURTH DIVISION
[NO. 60CR-09-1130]
KENTARA BROWN
APPELLEE HONORABLE HEBERT T.
WRIGHT, JUDGE
REVERSED AND REMANDED.
SHAWN A. WOMACK, Associate Justice
The State of Arkansas appeals the circuit court’s order to expunge Kentara Brown’s
felony conviction under Act 531 of 1993. The State contends that Brown was ineligible for
expungement under the Act and that the circuit court’s order was erroneous as a matter of
law. We reverse and remand to set aside the order to expunge.
I.
Brown pleaded guilty to Class C felony theft of property in 2009. See Ark. Code
Ann. § 5-36-103 (Repl. 2006). She was sentenced to three years of probation. The State
conceded that Brown was initially placed on probation under Act 531, also known as the
Community Punishment Act. See Ark. Code Ann. §§ 16-93-1201 to -1210 (Repl. 2006).
The original judgment and disposition order left unmarked a blank next to the statement:
“Defendant committed a target offense and was sentenced under the Community
Punishment [A]ct. Upon successful completion of the conditions of probation/S.I.S.
Defendant shall be eligible to have [her] records sealed.” The conditions of probation,
however, referenced Act 531.
In 2011, the State petitioned to revoke the original order after Brown failed to
comply with the conditions of probation. She pleaded guilty to the revocation charge. The
circuit court entered a new judgment and disposition order resentencing Brown to four
years of probation for the theft-of-property conviction. Like the original order, the new
order included a blank next to a statement indicating whether the sentence was under Act
531 and eligible for expungement. This time, the circuit court wrote “no” in the blank.
The new conditions of probation likewise omitted any reference to the Act.
In 2018, Brown petitioned to expunge her conviction under Act 531. The State
objected. It argued that revocation of the original order meant that she failed to successfully
complete probation under the Act. Because the post-revocation order was explicitly not
under Act 531, the State argued Brown was ineligible for expungement under either order.
The circuit court granted Brown’s petition to expunge her conviction under Act
531. An order to expunge was subsequently entered. In the order, the court concluded that
Brown had been sentenced under Act 531 and that she had “satisfactorily complied” with
the court’s orders. It referenced only the original three-year probation order. The post-
revocation order was not mentioned. It is from this decision that the State appeals.
II.
For its sole point on appeal, the State contends that the circuit court erroneously
expunged Brown’s conviction under Act 531. In short, the State argues that Brown failed
to successfully complete an order of probation under Act 531 and is thus ineligible for
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expungement under the Act’s provisions. This argument is twofold. First, the State claims
that Brown did not successfully complete the original probation order due to its revocation.1
The State also contends that the post-revocation probation order was not under Act 531
and may not be expunged under the Act.
Though we must typically consider the propriety of the State’s appeal under Arkansas
Rule of Appellate Procedure–Criminal 3, we need not do so here. We have consistently
held that an appeal from an order to seal a conviction, despite its criminal designation, is
civil in nature and not subject to Rule 3. See State v. Tyler, 2010 Ark. 307, at 2. We thus
accept this appeal without engaging in a Rule 3 analysis.
It is well settled that a sentence must be in accordance with the statutes in effect on
the date of the crime. See id. A court does not have the power to expunge a record when
the defendant was not sentenced under a statute that specifically provides for expungement.
See id. Moreover, a court may expunge a record only when the facts of the defendant’s case
meet the requirements outlined by the legislature in the expungement statute. See Bolin v.
State, 2015 Ark. 149, at 8, 459 S.W.3d 788, 793. Resolution of this matter accordingly turns
on the application and interpretation of Act 531. The question of the correct application
and interpretation of an Arkansas statute is a question of law, which this court decides de
novo. See id. at 4, 459 S.W.3d at 791.
We must begin with the statute. Act 531, in relevant part, provides that:
(a) Upon the sentencing or placing on probation of any person under the
provisions of this subchapter, the sentencing court shall issue an order . . .
in writing, setting forth the following:
1
We reject Brown’s contention that the State failed to preserve this argument. The
record establishes that the argument was raised during the hearing on the petition.
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(1) That the offender is being:
....
(D) Placed on probation under the provisions of this subchapter[.]
....
(b)(1) Upon the successful completion of probation . . . for one of the offenses
targeted by the General Assembly for community correction placement, the
court may direct that the record of the offender be expunged of the offense
for which the offender was either convicted or placed on probation under the
condition that the offender has no more than one previous felony
conviction[.]
Ark. Code Ann. § 16-93-1207. In other words, the circuit court has the authority to
expunge an offender’s record if the offender (1) has successfully completed a sentence under
Act 137, (2) for a target offense, and (3) has no more than one previous felony conviction,
provided the previous conviction is not among the enumerated list of disqualifying felonies.
See Fulmer v. State, 337 Ark. 177, 181, 987 S.W.2d 700, 701 (1999). The parties do not
dispute Brown’s satisfaction of the latter two requirements. The dispositive question is,
therefore, whether Brown successfully completed a sentence under the Act.
We first consider the original judgment and disposition order, which placed Brown
on probation for three years. The State conceded below—and the circuit court agreed—
that the original order was under Act 531. Even assuming this concession was correct,
Brown is eligible for expungement only upon successful completion of that sentence. Given
that the original order was revoked in 2011, the State contends that Brown did not
successfully complete probation under that order. We agree.
Once Brown violated the terms of probation, the circuit court was authorized to
revoke her sentence and impose any sentence that may have been originally imposed for
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the conviction. See Ark. Code Ann. § 5-4-309(f) (Repl. 2006); see also Lee v. State, 2010
Ark. 261, at 3 (per curiam). That is precisely what happened. Following revocation, the
circuit court entered a new judgment and disposition order resentencing Brown to four
years of probation for the theft-of-property conviction. Brown accordingly failed to
successfully complete probation under the revoked order. Her eligibility for expungement
under Act 531 must therefore be determined under the post-revocation order. To the extent
the order to expunge was based on the original probation order, the circuit court erred as a
matter of law.
Turning to the post-revocation order, we conclude that the circuit court did not
have authority to expunge Brown’s conviction under that order. That order expressly stated
it was not under Act 531 and was thus ineligible for expungement under the Act. As
previously noted, a court is without authority to expunge a record when the defendant was
not sentenced under a statute that explicitly provides for expungement. See State v. Burnett,
368 Ark. 625, 628, 249 S.W.3d 141, 143 (2007). Moreover, a defendant is not entitled to
sentencing under Act 531 as a matter of right. See Ark. Code Ann. § 16-93-1210.
Consequently, Brown is not eligible for expungement under Act 531 when the Act was
explicitly made inapplicable to her sentence by the sentencing court.
In sum, the circuit court did not have the authority to expunge Brown’s conviction
as a matter of law. Brown failed to successfully complete probation under Act 531 and is
thus ineligible for expungement under the Act’s provisions. We accordingly reverse and
remand to set aside the order to expunge.
Reversed and remanded.
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BAKER, HUDSON, and HART, JJ., dissent.
JOSEPHINE LINKER HART, Justice, dissenting. The Pulaski County Circuit
Court did not err in sealing Kentara Brown’s record pursuant to Act 531 of1993, commonly
known as the Community Punishment Act (Act 531). The majority’s conclusion that
Kentara Brown failed to “successfully complete her probation” betrays a fundamental
misunderstanding of Act 531.
This court’s duty to review this case is not satisfied by simply substituting our factual
findings for the ones made by the circuit court. The key to a proper disposition of this case
rests on the interpretation of an Arkansas statute, which is a question of law that we decide
de novo. Bolin v. State, 2015 Ark. 149, 459 S.W.3d 788. Act 531 is remedial legislation.
The strict rule of construction does not apply to remedial statutes that do not disturb vested
rights, or create new obligations, but only supply a new or more appropriate remedy to
enforce an existing right or obligation. Steward v. Statler, 371 Ark. 351, 266 S.W.3d 710
(2007). The cardinal principle for construing remedial legislation is to give appropriate
regard to the spirit which promoted its enactment, the mischief sought to be abolished, and
the remedy proposed. Id.
The purpose of Act 531 was clearly articulated by the legislature:
SECTION 1. Findings and Determinations. The State of Arkansas hereby
finds that the cost of incarcerating the ever-increasing numbers of offenders
in traditional penitentiaries is skyrocketing, bringing added fiscal pressures on
state government; and that some inmates can be effectively punished, with
little risk to the public, in a more affordable manner through the use of
community punishment programs and non-traditional facilities. As a result of
the rising cost of traditional incarceration, the State finds that the purpose of
corrections in Arkansas is twofold:
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Institutions—defined as traditional prison beds are charged with the
appropriate incapacitation of high risk offenders. Incapacitation involves
traditional aspects of incarceration coupled with highly supervised community
punishment when appropriate. High risk being defined as “those convicted
of the most serious offenses, those who have longer criminal histories, and
those who have repeatedly failed to comply with conditions imposed under
less restrictive sanctions”.
Community punishment—defined as both non-traditional
punishment centers and non-residential community punishments, including
supervision on probation, parole, and transfer, are charged with the provision
of punishment focused on promoting offender accountability and the
supervision of offenders at appropriate levels to promote public safety. The
community punishment target group shall consist of those offenders who are
involved in less serious criminal activity and/or are non-violent by nature and
crime, even though the offender/offense may be repetitive, those who are
technical violators of community supervision, and offenders returning to the
community from incarceration who are in need of enhanced supervision
options due to the nature of their criminal conviction.
Furthermore, the State determines that services designed to address
offender needs must be integrated into the framework of both institutions and
community punishment programs and must be balanced with supervision and
punishment such that the community is repaid for the offense, public safety is
promoted through supervision, and the offender is assisted in becoming a law
abiding member of society.
Probation, under Act 531 is defined as “a judicially imposed criminal sanction
permitting varying levels of supervision of eligible offenders in the community.” Under the
liberal construction that we must give the Act 531 definition, the revocation of Ms. Brown’s
original probation must not be considered a “failure,” but rather the need to increase the
“level of supervision.” In pertinent part, “supervision” under Act 531 means “direct
supervision, at varying levels of intensity by probation officers, in the case of sentences to
probation with a condition of community punishment.” Under the scheme established by
Act 531, a revocation is just one of the options given to the circuit court to accomplish the
broad remedial purposes of the legislation. It states:
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In the event a person sentenced under subdivision (1) of this act violates any
terms or conditions of his sentence or term of probation, revocation of the
sentence or term of probation shall be consistent with the procedures
established by law for the revocation of suspended imposition of sentence or
probation. Upon revocation, the court of jurisdiction shall determine whether
the offender shall remain under the jurisdiction of the court and be assigned
to a more restrictive community punishment program, facility, or institution
for a period of time or whether the offender shall be committed to the
Department of Correction. If committed to the Department of Correction,
the court shall specify if the commitment is for judicial transfer of the offender
to the Department of Community Punishment or is a regular commitment.
Thus, in the case before us, Ms. Brown did not end her probation when she was
revoked. In accordance with the provisions of Act 531, the circuit court chose to continue
to exercise jurisdiction over her. The imposition of a new four-year term of probation
merely raised her level of supervision. Liberally construing the provisions of Act 531 as we
must, the fact that Ms. Brown required a greater level of supervision did not make her
automatically ineligible for having her record sealed under Act 531. Under Act 531,
“Eligibility or Eligible Offender” means any person convicted of a felony, who is by law
eligible for such sentence, and who falls within the population targeted by the Arkansas
General Assembly for inclusion in community punishment facilities.” Ms. Brown’s
revocation was not the conviction of a second felony. Her assertion to the circuit court that
there were only two circumstances under which a person could not successfully complete
probation was by death or incarceration appears to conform to the plain language of Act
531. Accordingly, Ms. Brown only had one felony on her record. Upon completion of her
supervision, Ms. Brown did satisfy the conditions required by Act 531 for her record to be
sealed.
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I am mindful that the majority attaches special significance to Ms. Brown’s second
sentencing order in which the circuit court expressly stated that she was not sentenced
pursuant to Act 531. However, in Bolin, supra, Justice Wood, writing for the majority stated
that “it is irrelevant that the judgment and disposition order does not specifically recite that
Appellant was sentenced under section 16-93-1207, as such recitation is not required to be
eligible for expungement under the [Community Punishment] Act.” 2015 Ark. 149, at 8,
459 S.W.3d at 793 (quoting Fulmer v. State, 337 Ark. 177, 181, 987 S.W.2d 700, 701–02
(1999)). The circuit court’s ability to expunge a record under the Community Punishment
Act is not dependent upon the technical notation on the sentencing order but upon whether
the requirements of the expungement statute had been met. Id. The test for whether a court
has the ability to expunge a record is whether the facts of the petitioner’s case “line up”
with the requirements outlined by the legislature in the expungement statute. Id. As noted
previously, all of the requirements of Act 531 have been met.
BAKER and HUDSON, JJ., join.
Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Ass’t Att’y Gen., for appellant.
Short Law Firm, by: Lee D. Short, for appellee.
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