Express Designation Requirement under Act 683 for Parole Eligibility

Express Designation Requirement under Act 683 for Parole Eligibility

Introduction

In Torry Rodgers v. Arkansas Parole Board, 2024 Ark. 176, the Arkansas Supreme Court clarified a key provision of Act 683 of 2023 governing parole eligibility calculations. Appellant Torry Rodgers pleaded nolo contendere in 2018 to aggravated robbery, among other charges, and received concurrent twelve-year terms—annotated in his sentencing order as “DEF WILL SERVE 100% ON AGG ROBBERY.” After the Arkansas Department of Correction (ADC) initially treated Rodgers’s pre-2015 residential burglary (2008) as non-violent under Act 895 of 2015, a 2022 Attorney General opinion compelled the ADC to reverse course and deem that burglary a “violent felony offense,” extending Rodgers’s parole-ineligibility to 100% of his sentence. In response to administrative confusion, the General Assembly enacted Act 683 in 2023, providing that pre-April 1, 2015 residential burglary “does not include” a violent felony offense unless the defendant’s sentencing order “expressly designates that the defendant was sentenced under” Ark. Code Ann. § 16-93-609. Rodgers sought declaratory, injunctive, and mandamus relief in Pulaski County Circuit Court, arguing that his sentencing order lacked any express statutory citation and that his parole eligibility must be recalculated. The circuit court denied relief; Rodgers appealed.

Summary of the Judgment

On December 12, 2024, a unanimous Supreme Court (Baker, J.) reversed and remanded. Applying settled rules of statutory construction, the Court held that the plain language of Ark. Code Ann. § 16-93-609(b)(2)(B) unambiguously requires an “express” statutory designation on the sentencing order for a pre-2015 residential burglary to qualify as a violent felony offense. Because Rodgers’s order contained only the notation “DEF WILL SERVE 100% ON AGG ROBBERY”—without any citation to § 16-93-609—it failed to meet Act 683’s express-designation test. The Court therefore concluded that Rodgers’s residential burglary does not render him ineligible for parole under the amended statute and that his parole eligibility must be recalculated accordingly. The Court declined to consider extrinsic evidence (plea agreement, hearing transcript) or to order any nunc pro tunc correction, emphasizing that the statute limits review strictly to the sentencing order itself.

Analysis

Precedents and Statutory History

  • Ark. Code Ann. § 16-93-609 (Repl. 2016): Original parole-ineligibility scheme for violent felonies and felony sex offenses.
  • Act 895 of 2015: Added residential burglary to the list of “felonies involving violence” in § 5-4-501(d)(2).
  • Op. Ark. Att’y Gen. No. 010 (2022): Held that Act 895’s expansion applied to all residential burglaries, regardless of commission date.
  • Op. Ark. Att’y Gen. No. 026 (2023): ADC’s official reversal aligning with the Attorney General’s interpretation.
  • Act 683 of 2023: Clarified that pre-April 1, 2015 residential burglary “does not include” a violent felony offense unless the sentencing order expressly cites § 16-93-609.
  • Ark. Parole Bd. v. Johnson, 2022 Ark. 209: Held declaratory and mandamus relief appropriate when the ADC acts beyond statutory authority in parole calculations.
  • Schuldheisz v. Felts, 2024 Ark. 137: Confirmed that relief may issue if the ADC fails to adhere to parole statutes.

Legal Reasoning

The Court began with the fundamental axiom that unambiguous statutory text controls. Act 683(b)(2)(B) expressly provides:

Unless the sentencing order expressly designates that the defendant was sentenced under this section, “a violent felony offense … does not include residential burglary … committed before April 1, 2015….”

Citing Black’s Law Dictionary, the Court defined “express” as “clearly and unmistakably communicated,” and “designate” as “refer to or represent” in a direct manner. Because Rodgers’s order merely stated “DEF WILL SERVE 100% ON AGG ROBBERY,” without any reference to § 16-93-609, it did not fulfill the express-designation requirement. The Court rejected appellees’ invitation to apply a broader notice-of-ineligibility standard or to look beyond the order itself. It likewise declined to invoke nunc pro tunc correction, explaining that the power to correct clerical errors cannot be used to supply what the order “did not speak.”

Impact on Future Cases

This decision has immediate and lasting consequences for Arkansas sentencing practice:

  • Trial courts must include an explicit citation to Ark. Code Ann. § 16-93-609 whenever they intend a pre-2015 residential burglary to count as a violent felony for parole disqualification.
  • Pleadings and plea agreements should anticipate this requirement to avoid future administrative reversals.
  • The ADC and parole board cannot rely on post-sentencing interpretations or AG opinions to fill the gap left by an unspecific notation.
  • Defendants whose orders lack the express-designation language may secure recalculation of parole eligibility despite prior administrative practice.

Complex Concepts Simplified

  • Declaratory Judgment: A binding court declaration on parties’ rights or status without awarding damages.
  • Mandamus: A writ compelling a public official or entity to perform a clear legal duty.
  • Nolo Contendere: A plea in which the defendant neither admits nor denies guilt but accepts punishment.
  • Violent Felony Offense: A crime involving force or threat of force as defined in statute.
  • Parole Eligibility: The earliest date on which an inmate may be considered for release under supervision.
  • Nunc Pro Tunc: A retroactive correction of clerical errors in court records to reflect what was actually intended.

Conclusion

Torry Rodgers v. Arkansas Parole Board cements a clear statutory rule: for pre-April 1, 2015 residential burglaries to count as violent felonies under Ark. Code Ann. § 16-93-609, the sentencing order itself must “expressly designate” that the defendant was sentenced under that section. Absent a direct statutory citation, such offenses must be excluded from parole-eligibility calculations. This ruling promotes legislative clarity, confines judicial inquiry to the four corners of the sentencing document, and underscores that administrative agencies cannot override an unambiguous statutory command. Going forward, all stakeholders—judges, prosecutors, defense counsel, and the ADC—must ensure that sentencing orders unambiguously reflect the statutory basis for any parole ineligibility.

Case Details

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