Kimbrell v. State
2017 Ark. App. 555
| Ark. Ct. App. | 2017Background
- In 1995 Kimbrell pleaded no contest to conspiracy to deliver a controlled substance and was placed on 4 years’ probation under Act 346, which then provided for automatic expungement upon successful completion of probation.
- The State filed a petition to revoke probation in 1996; the record does not show a hearing, and the revocation petition was later nolle prossed in 2000.
- The circuit court entered an order in January 1999 finding Kimbrell had completed probation and waiving supervision fees but did not address expungement.
- In 2014 Kimbrell was charged with felon-in-possession under Ark. Code Ann. § 5-73-103; he moved to dismiss, arguing his 1995 disposition should have been automatically expunged under § 16-93-303.
- This court’s prior opinion (Kimbrell I) held that automatic expungement applied in theory but that Kimbrell had not fulfilled probation terms (including a positive drug test), so his record was not expunged and remained a valid predicate for the 2014 charge.
- After Kimbrell challenged the constitutionality of § 5-73-103 and § 16-93-303, the circuit court rejected those challenges; Kimbrell entered a conditional no-contest plea and appealed the denial of his constitutional challenge(s).
Issues
| Issue | Plaintiff's Argument (Kimbrell) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether Kimbrell may challenge § 16-93-303 on appeal from a conditional plea to § 5-73-103 | Amendment imposing expungement/dismissal requirement was retroactively applied and unconstitutional | Appeal from conditional plea only permits challenge to statute defining the charged offense (§ 5-73-103) | Not considered on appeal; challenge to § 16-93-303 dismissed for scope reasons |
| Whether Kimbrell can raise due-process and Second Amendment challenges | Retroactive application of amended § 5-73-103 violated due process and Second Amendment | Issues were not developed below; therefore not preserved for appeal | Not reached — arguments not preserved because not developed in circuit court |
| Whether applying amended § 5-73-103(b)(2) to Kimbrell is an ex post facto violation | Amendment effectively added a new requirement (expungement/dismissal) making his 1995 Act 346 disposition insufficient, so retroactive application is ex post facto | Kimbrell’s 1995 disposition was never expunged; the amendment applies only to persons whose cases were dismissed and expunged | Dismissed — Kimbrell lacks standing because his 1995 conviction was not expunged; no ex post facto relief |
| Standing to challenge § 5-73-103(b)(2) | He is within the class affected by the amendment because Act 346 previously mandated automatic expungement | He is not in the class because his record was not expunged due to failure to fulfill probation | Held against Kimbrell: he is not in the protected class and thus lacks standing |
Key Cases Cited
- Kimbrell v. State, 480 S.W.3d 206 (Ark. Ct. App. 2016) (prior appellate decision finding no fulfillment of probation; conviction not expunged)
- Arnold v. State, 384 S.W.3d 488 (Ark. 2011) (standard: de novo review of statutory interpretation and constitutional issues)
- Brown v. State, 454 S.W.3d 226 (Ark. 2015) (presumption of constitutionality; challenger bears burden)
- Gooch v. State, 463 S.W.3d 296 (Ark. 2015) (issues not developed below are not reviewable on appeal)
- Jester v. State, 239 S.W.3d 484 (Ark. 2006) (standing to challenge statute requires that law be unconstitutional as applied to the litigant)