Laymon v. State, 2015 Ark. 485

Chad Steve Laymon was charged with DWI, sixth offense, under Ark. Code Ann. § 5-65-122 (enacted 2013); the charged offense occurred March 14, 2014.
Laymon filed a pretrial motion to suppress and dismiss, arguing § 5-65-122’s use of prior DWI convictions to enhance punishment violated federal and state ex post facto clauses; he also initially argued lack of counsel at prior convictions (later abandoned on appeal).
The trial court denied the pretrial motion, concluding the statute did not violate ex post facto protections and that any prior uncounseled convictions were waived.
Laymon entered a conditional plea of guilty reserving the right to appeal the denial of his pretrial constitutional challenge under Ark. R. Crim. P. 24.3(b)(iii).
The trial court sentenced Laymon to 96 months’ imprisonment with an additional 48-month suspended imposition of sentence; he appealed.

Issue	Laymon's Argument	State's Argument	Held
Whether Rule 24.3(b)(iii) permits an appeal from a conditional plea when the defendant raises a pretrial constitutional challenge to the statute	Rule 24.3(b)(iii) should permit appellate review of his pretrial challenge	The rule allows review of pretrial constitutional challenges to the statute defining the offense	Rule 24.3(b)(iii) permits an appeal from a conditional plea for pretrial statutory-constitutionality challenges (includes as-applied and facial challenges) — court exercised jurisdiction
Whether application of § 5-65-122 to enhance punishment based on prior DWIs committed before the statute’s enactment violates the federal and state ex post facto clauses	Using pre-enactment convictions to enhance punishment makes the law ex post facto because it increases punishment for past acts	The enhancement punishes the post-enactment offense (the sixth DWI committed after enactment), so it is not an ex post facto law	Not an ex post facto violation; statute may be applied to enhance punishment for an offense committed after enactment
Whether due-process notice or sealing of prior misdemeanor DWIs barred enhancement (preservation)	(Raised on appeal) Lack of notice that prior convictions could be revived and sealing should prevent look-back	Arguments not preserved at trial; no ruling below to review	Arguments not preserved; court declined to consider them on appeal

Sims v. State, 262 Ark. 288 (1977) (enhanced penalty for a later offense is not ex post facto where the later offense occurred after enactment)
Eichelberger v. State, 323 Ark. 551 (1996) (definition of ex post facto prohibitions)
Beazell v. Ohio, 269 U.S. 167 (1925) (foundational ex post facto principles)
Garrett v. State, 347 Ark. 860 (2002) (related treatment of sentence enhancements and prior offenses)
Stanley v. Ligon, 374 Ark. 6 (2008) (court-rule construction principles apply similarly to statutes)
Green v. State, 330 Ark. 458 (1997) (constitutional arguments raised first on appeal are not considered)
Huddleston v. State, 347 Ark. 226 (2001) (failure to obtain a trial-court ruling precludes appellate review)