Arkansas Supreme Court: sentencing orders must ‘expressly’ cite parole statute for pre‑2015 burglaries to count as violent felony; case remanded

The Arkansas Supreme Court on Dec. 12, 2024, reversed a Pulaski County Circuit Court order and remanded the case of Torry Rodgers v. Arkansas Parole Board, holding that Act 683 of 2023 requires a defendant’s sentencing order to “expressly designate” Arkansas Code Annotated section 16-93-609 before a residential burglary committed before April 1, 2015, can be treated as a prior “violent felony” for parole-calculation purposes. Associate Justice Karen R. Baker wrote the majority opinion.

The decision matters because it limits when older residential-burglary convictions may be used to deny parole and instructs correctional administrators to look only to a defendant’s sentencing order when determining whether Act 683’s exception applies. The ruling affects inmates whose parole eligibility was recalculated after a 2022 Arkansas Attorney General opinion and could require the Arkansas Department of Correction (ADC) to revisit earlier eligibility determinations.

Rodgers entered a negotiated plea of nolo contendere on June 20, 2018, in Jefferson County to aggravated robbery, theft by threat and felon-in-possession charges arising from conduct in March 2017. He was sentenced to concurrent 12-year terms; his sentencing order included the notation, “DEF WILL SERVE 100% ON AGG ROBBERY.” Rodgers also had a 2008 residential-burglary conviction. In 2015 the General Assembly added residential burglary to the list of felonies “involving violence” (Act 895 of 2015), but the ADC initially treated that change as applying only to burglaries committed on or after April 1, 2015. After Op. Ark. Att’y Gen. No. 010 (May 24, 2022), the ADC revised its interpretation and recalculated parole-eligibility dates for some inmates, including Rodgers, ultimately treating his 2008 burglary as a violent felony and calculating his parole eligibility as 100 percent of his sentence.

Act 683, effective Aug. 1, 2023, amended § 16-93-609 to state that, unless the sentencing order “expressly designates that the defendant was sentenced under this section,” a residential burglary committed before April 1, 2015, does not count as a violent felony for parole purposes—unless the defendant was sentenced on or after May 24, 2022. Rodgers argued that his sentencing order contained no such express designation and that Act 683 therefore precluded treating his 2008 burglary as a violent felony.

The Supreme Court agreed. The majority reasoned that the plain language of § 16-93-609(b)(2)(B) limits review to the sentencing order itself and that Rodgers’s notation—"DEF WILL SERVE 100% ON AGG ROBBERY"—does not “clearly and unmistakably” designate that he was sentenced under § 16-93-609. The court rejected appellees’ arguments that the notation, Rodgers’s plea agreement, or other extrinsic materials could supply the required “express designation.” Citing rules of statutory construction, the court held the statute’s meaning was plain and unambiguous and that the notation did not qualify as an express citation to § 16-93-609.

The majority also considered and declined appellees’ contention that a nunc pro tunc correction of the sentencing order could cure any omission. The court explained that nunc pro tunc relief corrects clerical mistakes so the record “speaks the truth,” but it will not supply what the record did not in fact state; the absence of an express statutory reference was not shown to be a clerical error.

Accordingly, the court concluded that Rodgers’s 2008 residential burglary is not a “violent felony offense” for purposes of computing his parole eligibility under Act 683, reversed the Pulaski County order denying Rodgers relief, and remanded for further proceedings consistent with its interpretation. The majority expressly declined to address Rodgers’s alternative argument asking that the circuit court rule without considering extrinsic evidence, because reversal was warranted on the statutory-interpretation ground.

The opinion notes related statutory developments: Act 659 of 2023 (effective Jan. 1, 2024) later removed residential burglary from the definition of “felony involving violence” for offenses committed on or after that date. The court also discussed the 2022 Attorney General opinions (Op. No. 010 and Op. No. 026) that prompted the ADC to change its interpretation and recalculate eligibility for some inmates.

Justices Shawn A. Womack and Barbara Webb dissented. Justice Womack argued the case should have been dismissed for lack of jurisdiction under article 5, section 20 of the Arkansas Constitution and that Rodgers should have raised the matter in his underlying criminal case. Justice Webb contended that parole eligibility is governed by the statute in effect when the offense was committed and reasoned that Rodgers was not an “affected person” under Act 683 because his plea agreement explicitly provided that he would serve 100 percent of the aggravated-robbery sentence; she would have affirmed the circuit court.

Counsel of record included Michael Kiel Kaiser for appellant Torry Rodgers and Assistant Attorney General David L. Eanes Jr. for appellees; Tim Griffin was noted as Attorney General.

For now, the ADC’s recalculations and any effect on other inmates must proceed under the court’s reading of Act 683, and the case has been remanded to the lower court for further proceedings consistent with that ruling.