Arkansas Supreme Court affirms that McGowan is parole‑eligible under Act 683

LITTLE ROCK, Ark. — The Arkansas Supreme Court on Dec. 12, 2024, affirmed a Pulaski County circuit court ruling that Grady L. McGowan is eligible for parole because his sentencing order did not “expressly designate” ineligibility under Arkansas Code Annotated § 16-93-609, and the court declined to remand the matter for a nunc pro tunc correction.

Associate Justice Cody Hiland, writing for the majority, said the sentencing order lacked the express statutory language required to render McGowan ineligible and wrote, “Because the sentencing order does not expressly designate that McGowan was ineligible for parole pursuant to Ark. Code Ann. § 16-93-609(b)(2) as the statutory language requires, we affirm.”

The question turned on Act 683 of 2023 and the interplay of that statute with earlier sentencing and prosecutorial documents. Act 683 provides that, unless a sentencing order “expressly designates that the defendant was sentenced under this section,” residential burglary committed before April 1, 2015, does not count as a “violent felony offense” for the purpose of § 16-93-609 unless the defendant was sentenced on or after May 24, 2022.

The case facts: McGowan was convicted of residential burglary in 1995 and again pleaded guilty to residential burglary in 2020; the 2020 judgment imposed nine years’ imprisonment and an additional eleven‑year suspended imposition of sentence. The written sentencing order included an “Additional Info” notation that “Defendant has been advised that he may be ineligible for release on parole due to a prior felony conviction.”

The Arkansas Division of Correction (ADC) initially determined McGowan eligible for parole and approved a transfer to supervision by the Arkansas Division of Community Correction. After an Arkansas Attorney General opinion in May 2022 concluded that a residential burglary followed by an additional offense on or after April 1, 2015, made an offender ineligible for parole, ADC recalculated McGowan’s release date and rescinded his transfer; ADC recalculated his release date as Nov. 24, 2028, requiring service of the full nine‑year sentence.

In November 2023 McGowan filed a petition for declaratory judgment, injunctive relief, and mandamus in Pulaski County circuit court asking the court to declare that Act 683 applies to his sentence and to direct officials to restore his parole eligibility. After a hearing in April 2024, the circuit court granted declaratory relief, ordered Appellants to modify his parole‑eligibility date in accordance with that order, and denied a writ directing his immediate release, stating that McGowan’s release was an issue for the Arkansas Post‑Prison Transfer Board.

On appeal, Appellants — the Arkansas Post‑Prison Transfer Board; Lona McCastlain in her official capacity as chairwoman; the Arkansas Division of Correction; and Dexter Payne in his official capacity as director — argued that the plea agreement and other documents put McGowan on notice of ineligibility and that the sentencing order could be amended nunc pro tunc to reflect the true basis for the plea. The Supreme Court rejected those arguments, relied on statutory text and its companion decision Rodgers v. Arkansas Parole Board (2024 Ark. 176), and affirmed the circuit court’s declaratory judgment. The court declined to remand for a nunc pro tunc amendment of the sentencing order.

There were written dissents. Justice Shawn A. Womack dissented, arguing the case should be dismissed on jurisdictional grounds under Article 5, Section 20 of the Arkansas Constitution because, in his view, McGowan improperly made the State a defendant instead of seeking relief in the underlying criminal case. Justice Barbara W. Webb also dissented, writing that Act 683 does not apply to McGowan and that he therefore remains ineligible for parole.

The court’s order affirmed the circuit court but did not direct immediate release; the opinion noted that McGowan’s release remains an administrative matter for the Arkansas Post‑Prison Transfer Board and related agencies.