Williams v. State , 2017 Ark. App. 526 ( 2017 )

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    2017 Ark. App. 526
                     ARKANSAS COURT OF APPEALS
                                           DIVISION I
                                         No. CR-16-1124
                                                     Opinion Delivered   October 18, 2017
       LARRY WILLIAMS                       APPEAL FROM THE PULASKI
                                  APPELLANT COUNTY CIRCUIT COURT,
                                            SECOND DIVISION
       V.                                   [NO. 60CR-15-2107]
                                     APPELLEE CHARLES PIAZZA, JUDGE
                               BRANDON J. HARRISON, Judge
            This appeal requires us to read Arkansas’s sex-offender-registration law and decide
    how two particular statutes apply to Larry Williams, who was convicted by the circuit court
    of failing to comply with the law and sentenced to three years’ imprisonment as a result.
    Ark. Code Ann. § 12-12-904 (Supp. 2015) (failure to comply with reporting and
    registration requirements). Williams argues on appeal that the State didn’t prove that he
    had to register as a sex offender at all, so he couldn’t have violated the law when he failed
    to report a change of address to law-enforcement officials. He doesn’t contest the court’s
    finding that he failed to keep law enforcement timely informed of his residence, if the law
    does apply to him.
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           In February 1993, Williams pled guilty to rape. He was sentenced to forty years in
    the Arkansas Department of Correction (ADC) on that charge, among other things. He
    was discharged from the ADC on 27 June 2014.
           In March 2016, the State filed an amended felony information and alleged that
    Williams had violated § 12-12-904 because he is a registered sex offender who had failed to
    report a change of address in May 2015 and had failed to register or verify his registration
    from 30 September 2015 to 1 February 2016.
           Williams waived his right to a jury trial, so a bench trial was held in April 2016 before
    the Pulaski County Circuit Court. At trial, Detective Matt Harrelson testified that Williams
    registered with the police department as a sex offender on 1 July 2014. A “Sex Offender
    Acknowledgment Form” that Williams had signed on 30 March 2015 stated that he was to
    return on 30 September 2015, in person, to the Little Rock Police Department and verify
    his address. In May 2015, however, Detective Harrelson arrested Williams after determining
    that he was not living at the registered address. (The record doesn’t explain precisely what
    happened after this arrest.) On 22 June 2015, Williams gave law enforcement a residential
    address of 1723 South Elm Street; but it was too close to a school or park, so Detective
    Harrelson allowed Williams time to move.            The detective subsequently received a
    delinquent-verification-of-residency letter from the Arkansas Crime Information Center
    (ACIC) indicating that Williams had missed the September 30 deadline to verify his
    residence. On 12 November 2015, Detective Harrelson visited Williams’s registered address
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    (1723 South Elm Street), and it appeared to be vacant. Because the detective didn’t know
    where Williams was located, an arrest warrant issued, and he was arrested in due course.
           Paula Stitz testified during the trial that she manages the state sex offender registry
    for the ACIC and, when asked, said that the effective date of the laws requiring sex offenders
    to register was 1 August 1997, that rape was a qualifying offense requiring registration, and
    that a person who had previously been convicted of rape and was serving a term of
    imprisonment on August 1, 1997, had to register when released from custody. On cross-
    examination, Stitz agreed that Williams’s 1993 judgment and commitment order doesn’t
    direct that he had to register as a sex offender.
           Williams seized on the fact that the 1993 order doesn’t expressly state that registration
    was required by arguing in his motion to dismiss below that the language in the “four
    corners” of the 1993 order doesn’t contain the mandatory language required by § 12-12-
    906(A)(1)(a)(i), which states:
                  At the time of adjudication of guilt, the sentencing court shall enter on
           the judgment and commitment or judgment and disposition form that the
           offender is required to register as a sex offender and shall indicate whether the:
                  (a) Offense is an aggravated sex offense;
                  (b) Sex offender has been adjudicated guilty of a prior sex offense under
           a separate case number; or
                  (c) Sex offender has been classified as a sexually dangerous person.
    Also at issue, however, is § 12-12-905 (titled “Applicability”), which states in pertinent part:
                  (a) The registration or registration verification requirements of this
           subchapter apply to a person who:
                  (1) Is adjudicated guilty on or after August 1, 1997, of a sex offense,
           aggravated sex offense, or sexually violent offense;
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                  (2) Is serving a sentence of incarceration, probation, parole, or other
           form of community supervision as a result of an adjudication of guilt on or
           after August 1, 1997, for a sex offense, aggravated sex offense, or sexually
           violent offense[.]
           According to Williams’s motion to the circuit court, the State failed to establish that
    he had to register as a sex offender because he was convicted before the sex-offender-
    registration law was enacted; and his 1993 judgment and commitment order didn’t state that
    he had to register as a sex offender. The State argued that the duty to register was “triggered
    by the fact that he was in the pen on August first of ’97, convicted of rape, period.” So
    Williams relies on section -906; and the State rests on section -905. The circuit court sided
    with the State, denied Williams’s motion, and found him guilty under section -904 for
    failing to properly verify his address.
           Does Arkansas’s Sex Offender Registration Act capture Williams’s 1993 conviction
    for rape so that he was required to timely inform law enforcement of a change of address
    and otherwise keep authorities informed of his whereabouts? Williams thinks not, because,
    as we’ve stated, his 1993 order doesn’t, by its own terms, require him to register, though
    § 12-12-906(A)(1)(a)(i) states that it must. The State’s counter on appeal, as before, is:
                   To read the statute, as Appellant does, to mean there is no duty to
           register as a sex offender unless the sentencing court’s judgment-and-
           commitment order says so leads to an absurd result. Certainly, the legislature
           did not intend for sex offenders convicted prior to August 1, 1997, and still
           serving sentences on or after that date, or for sex offenders convicted between
           1997 and 2001, to escape the registration requirements simply because their
           judgment-and-commitment orders may not include a notation that they are
           required to register.
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           This case requires us to construe two statutes and apply them to the case without
    deferring to the circuit court’s decision. State v. Coble, 
    2016 Ark. 114
    , at 3, 
    487 S.W.3d 370
    , 372 (de novo standard of review). A host of guiding principles can be recited when
    an appellate court must answer a statutory-interpretation question, but only a few need to
    be recited here. A primary one is to read the statutes in context and in a way that gives all
    words their ordinary and usually accepted meaning in common language. Id. At the end
    of our interpretive quest we must be able to report that “[w]e have not traveled, in our
    search for the meaning of lawmakers, beyond the borders of the statute.” United States v.
    Great Northern Ry. Co., 
    287 U.S. 144
    , 154 (1932) (Cardozo, J.). But we need not leave
    common sense at the door. Dachs v. Hendrix, 
    2009 Ark. 542
    , at 8–9, 
    354 S.W.3d 95
    , 101.
    And because two statutes are at issue here, they must be read harmoniously. Conflict
    between them must be avoided if possible. Sesley v. State, 
    2011 Ark. 104
    , at 3, 
    380 S.W.3d 390
    , 391.
           The circuit court correctly denied Williams’s motion to dismiss. His argument is
    defeated by § 12-12-905 and the case law. That statute states that the registration and
    registration-verification requirements apply to a person who was serving a sentence of
    imprisonment on or after 1 August 1997. Williams was in prison on, and long after, that
    date because he was not released without supervision until 2014. Even assuming for the
    sake of argument that section -905 was grammatically or syntactically unclear, our supreme
    court made it known years ago that section -905 applies to persons “still serving a sentence
    of incarceration, probation, parole, or other form of community supervision at the time of
    the Act’s effective date, August 1, 1997.” Kellar v. Fayetteville Police Dep’t, 
    339 Ark. 274
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    5 S.W.3d 402
    , 404 (1999); see also Williams v. State, 
    351 Ark. 229
    , 233, 
    91 S.W.3d 68
    70 (2002) (applying this interpretation to a prior conviction in another state); Morris v. State,
    2015 Ark. App. 454
    , at 3 (applying same reasoning). Here we may apply another principle
    of statutory construction: when a court interprets a statute its interpretation becomes a part
    of the statute. Miller v. Enders, 
    2013 Ark. 23
    , at 12, 
    425 S.W.3d 723
    , 730. Having favorably
    addressed the State’s reliance on section -905, we turn to Williams’s reliance on section
            For years, circuit courts have had to make a finding on a sentencing order, when it’s
    proper to do so, that the defendant must register as a sex offender. See Ark. Code Ann.
    § 12-12-906(A)(1)(a)(i). But that requirement doesn’t apply to Williams because section
    -906 wasn’t enacted until 2001, years after Williams’s 1993 order was entered. The
    requirement that a sentencing order must direct whether someone has to register as a sex
    offender was first promulgated by Acts of 2001, Act 1743, § 5, and became effective on 13
    August 2001. Act of April 18, 2001, No. 1743, § 5. 2001 Ark. Acts 7615, 7625. It’s
    remained the same since. See, e.g., Ark. Code Ann. § 12-12-906(A)(1)(a)(i) (Supp. 2015).
    Moreover, the General Assembly has given no clear directive to apply section -906’s
    requirements retroactively. See Littles v. Flemings, 
    333 Ark. 476
    970 S.W.2d 259
    see also Brandon J. Harrison & Hans J. Hacker, Arkansas’s Retroactive-Legislation Doctrine, 
    64 Ark. L
    . Rev. 903 (2011). Williams himself hasn’t argued that section -906 should be applied
    retroactively so that its terms capture his 1993 order. We therefore disagree that § 12-12-
    906(A)(1)(a)(i) requires that the 1993 order had to direct Williams to register as a sex
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    offender before any current registration or registration-verification requirements can govern
    his conduct.
           The State established that Williams had been found guilty of committing a
    registerable sex offense (rape) under § 12-12-903(13)(A). It also showed that he was
    incarcerated on 1 August 1997, which according to § 12-12-905 and our supreme court’s
    interpretation of it, means that the registration and verification requirements of the Arkansas
    Sex Offender Registration Act apply to Williams. And nothing in § 12-12-906 alters our
    conclusion. The circuit court’s decision is affirmed in all respects.
           GLADWIN and KLAPPENBACH, JJ., agree.
           William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender,
    for appellant.
           Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Ass’t Att’y Gen., for appellee.