Lead Opinion
_JjThe State seeks reversal of the sentencing order of the Faulkner County Circuit Court, sentencing the appellee, Jeremy O’Quinn, to concurrent terms of five years in the Arkansas Department of Correction with an additional ten years’ suspended imposition of sentence plus costs and fees for each conviction. The State contends that the circuit court illegally sentenced O’Quinn because the statutory-minimum sentence for a habitual offender was not imposed. Additionally, the State argues that the circuit court erred by not imposing a fine against O’Quinn pursuant to the applicable statute. We find merit in the appeal, and we reverse and remand for resentencing.
Before reaching the merits, we must first determine whether the State may appeal the sentencing order. This court accepts appeals by the State when our holding would be important to the correct and uniform administration of Arkansas criminal law. See Ark. R.App. P.-Crim. 3(c) (2012); see also State v. Stephenson,
The underlying facts of this case are not in dispute. The relevant sentencing order was entered subsequent to a finding of the circuit court that O’Quinn was guilty, as a habitual offender, of manufacturing methamphetamine in violation of Ark.Code Ann. § 5-64-401(a)(1)
Sentencing is entirely a matter of statute. See State v. Joslin,
One of O’Quinn’s two convictions was manufacturing methamphetamine, a Class Y felony, and, although it has since been repealed, the applicable sentencing statute at the time was Ark.Code Ann. § 5-64-401. The statute provided in pertinent part:
(a) Controlled Substance — Manufacturing, Delivering, or Possessing with Intent to Manufacture or Deliver. Except as authorized by subchapters 1-6 of this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance. Any person who violates this subsection with respect to:
(1) Schedule I or II Narcotic Drug or Methamphetamine.
(A)(i) A controlled substance classified in Schedule I or Schedule II that is a narcotic drug or methamphetamine, and by aggregate weight, including an adulterant or diluent, is less than twenty-eight grams (28g), is guilty of á felony and shall be imprisoned for not less than ten (10) years nor more than forty (40) years, or life, and shall be fined an amount not exceeding twenty-five thousand dollars ($25,000).
(ii) For any purpose other than disposition, this offense is a Class Y felony.
|4Ark.Code Ann. § 5-64-401(a)(l)(A)(i), (ii) (Supp.2009) (repealed by Act 570 of 2011, § 33).
O’Quinn was sentenced as a habitual offender pursuant to the habitual-offender statute because he had been previously convicted or found guilty of four other felonies. See Ark.Code Ann. §§ 5-4-501 to -504 (Repl.2006 & Supp.2009). Section 5-4-501(b)(l) sets forth the criteria that a defendant must satisfy before an extended term of imprisonment may be imposed. Section 5-4-501(b)(2) then provides the express guidelines for sentencing a habitual offender and states
(2) The extended term of imprisonment for a defendant described in subdivision (b)(1) of this section is as follows:
(A) For a conviction of a Class Y felony2 , a term, of imprisonment of not less than ten (10) years nor more than life;
(B) For a conviction of a Class A felony, a term of imprisonment of not less than six (6) years nor more than sixty (60) years;
(C) For a conviction of a Class B felony, a term of imprisonment of not less than five (5) years nor more than forty (40) years;
(D) For a conviction of a Class C felony, a term of imprisonment of not less than three (3) years nor more than thirty (30) years;
(E) For a conviction of a Class D felony, a term of imprisonment of not more than fifteen (15) years;
|a(F) For a conviction of an unclassified felony punishable by less than life imprisonment, a term of imprisonment not more than two (2) times the maximum sentence for the unclassified felony offense; and
(G) For a conviction of an unclassified felony punishable by life imprisonment, a term of imprisonment not less than ten (10) years nor more than fifty (50) years, or life.
Ark.Code Ann. § 5^4 — 501(b)(2) (emphasis added). When the required sentence under this statute is longer than the sentence listed under the applicable statute for the specific offense, the circuit court is to sentence a defendant in accord with the habitual-offender statute. See, e.g., McKillion v. State,
While the State additionally argues that the circuit court erred by failing to impose a fine pursuant to the controlled-substances statute, we disagree. Arkansas Code Annotated section 5-64-401(a)(l)(A)(i) did instruct that O’Quinn “shall be fined an amount not | r,exceeding twenty-five thousand dollars ($25,000).” Zero is an amount not exceeding twenty-five thousand dollars, and no minimum amount was mandated in the statute. See, e.g-., Donaldson v. State,
However, as previously discussed, because the circuit court did exceed its statutory authority by imposing a sentence of five years when at least a ten-year sentence was required, we reverse and remand for the purpose of resentencing.
Reversed and remanded.
Notes
. This is the statute that was in effect at the time of O'Quinn’s conviction and, therefore, applicable in the instant case even though it has since been repealed by Act 570 of 2011, § 33.
. While O'Quinn implies — although does not properly develop an argument — in his brief that the punishment for his offense should be in accord with something other than a Class Y felony because of the language in A.C.A. § 5-64-40 l(a)(l)(A)(ii), this court has already rejected such an argument in Williams v. State,
. While Ark.Code Ann. § 5-4-104(c)(2)(C) does specifically permit a circuit court to, in addition to imposing a term of imprisonment, suspend imposition of an additional term of imprisonment, our case law suggests that once the habitual-offender statute is applicable, it is not an additional sentence, but becomes the required sentence.
. While the State also suggests in a footnote that O’Quinn’s sentence for possession of drug paraphernalia with intent to manufacture was also incorrect, that issue was not fully developed and is not the basis for our reversal.
Dissenting Opinion
dissenting.
I respectfully dissent. The statute relied on by the majority for the methamphetamine conviction states, “For any purpose other than disposition, this offense is a Class Y felony.” Ark.Code Ann. § 5-64-401(a)(l)(A)(i), (ii) (Supp.2009) (repealed by Act 570 of 2011, § 33). The majority then holds that O’Quinn is subject to at least ten years’ imprisonment as a habitual offender, relying on section 5-4-501(a)(2) (Repl.2006), which applies to a “conviction of a Y felony.” The conviction in the present case was not a Class Y felony for purposes of disposition; however, the majority then treats O’Quinn’s conviction as a Class Y felony for purposes of disposition under section 5A-)7501(a)(2). In Williams v. State,
BAKER and HART, JJ., join,
Dissenting Opinion
dissenting.
Jeremy Lynn O’Quinn was convicted of manufacturing methamphetamine. Ark. Code Ann. § 5-64-401(a) (Repl.2005). As noted by the majority, the applicable penalty range set forth in that statute is ten to forty years or life. Ark.Code Ann. § 5-64-401(a)(l)(A)(i). The majority also cites to a provision |sof the statute that states, “For any purpose other than disposition, this offense is a Class Y felony.” Ark. Code Ann. § 5-64-401(a)(l)(A)(ii); see Crouse v. State,
The majority then emphasizes Arkansas Code Annotated section 5-4-501(a)(2)(A) (Repl.2006), which sets forth the applicable extended term of imprisonment for persons convicted of a Class Y felony. The majority’s reliance on this statute, which pertains to the disposition of persons convicted of a Class Y felony, is inconsistent with the majority’s earlier citation of Arkansas Code Annotated section 5-64-401(a)(l)(A)(ii), which, in sum, says that manufacturing methamphetamine is not a Class Y felony for purposes of disposition. Either manufacturing methamphetamine is a Class Y felony for purposes of disposition
Further, I note that the State also argued on appeal that — aside from whether a person is a habitual offender — a person convicted of manufacturing must be sentenced within the sentencing range provided for in Arkansas Code Annotated section 5 — 64—401(a)(l)(A)(i) and cannot have any portion of the sentence suspended. I note that this court recently decided Crouse v. State, supra, which speaks to this issue, and the majority’s failure to address the issue in the face of an obvious inconsistency within the statute is likewise troubling.
Thus, I respectfully dissent.
HANNAH, C.J., and BAKER, J., join.