TRENT A. KIMBRELL APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE POLK COUNTY CIRCUIT COURT [NO. 57CR-14-5] HONORABLE
JERRY RYAN, JUDGE
Danielson Law Firm, PLLC, by: Erik P. Danielson, for
Rutledge, Att'y Gen., by: Kathryn Henry, Ass't
Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, Judge
Trent Kimbrell contends that the circuit court erred in
rejecting his challenges to the constitutionality of Arkansas
Code Annotated section 5-73-103 and Arkansas Code Annotated
section 16-93-303. We affirm.
previously appealed the decision of the Polk County Circuit
Court that denied his motion to dismiss a charge of
possession of firearms by certain persons. We affirmed the
circuit court in Kimbrell v. State, 2016 Ark.App.
17, 480 S.W.3d 206 (Kimbrell I). That opinion sets
forth the facts in detail, so we need not recite them in
their entirety here. We will provide only a summary for
purposes of this opinion.
entered a plea of no contest to one count of conspiracy to
deliver a controlled substance in January 1995. At that time,
he was placed on four years' probation pursuant to Act
346 of 1975, which provides for discharge and dismissal
opportunities upon fulfillment of the terms and conditions of
probation. In October 1996, the State filed a petition to
revoke Kimbrell's probation, but the record does not
reflect that a hearing was ever held on the State's
January 1999, the Polk County Circuit Court entered an
"Order to Waive Supervision Fees" in which it found
that Kimbrell had "completed his term of probation"
on January 18, 1999, but still owed supervision fees. The
court waived the balance of the fees, but it did not mention
the issue of expungement.
January 2014, the State charged Kimbrell with being a felon
in possession of a firearm. Kimbrell moved to dismiss the
charge, asserting that his record should have been
automatically expunged upon his successful completion of
probation in 1999 pursuant to Act 346. Kimbrell also filed a
petition to dismiss and seal his 1995 case. The circuit court
denied Kimbrell's motion to dismiss the 2014 charges,
disagreeing that Act 346 provided for automatic expungement.
The circuit court also denied his petition to dismiss and
seal the 1995 case, finding that Kimbrell had tested positive
for marijuana during his period of probation, which could
have resulted in his probation being revoked.
appealed that decision to this court, arguing that (1) at the
time of his 1995 guilty plea and sentencing, Arkansas Code
Annotated section 16-93-303 provided for automatic
expungement, and (2) the court erred in denying
Kimbrell's petition to seal and expunge his record. In
Kimbrell I, we agreed with Kimbrell's first
argument and held that at the time he was sentenced in 1995,
expungement should have occurred automatically upon the
fulfillment of the terms and conditions of his probation.
Kimbrell I, 2016 Ark. App 17, at 8, 480 S.W.3d at
210. We went on to hold, however, that Kimbrell did not
"fulfill the terms and conditions of his probation,
" and therefore he was not entitled to such automatic
expungement. Id. at 9-10, 480 S.W.3d at 211. We thus
affirmed the circuit court's denial of his motion to
dismiss the felon-in-possession charge. Id. at
10-11, 480 S.W.3d at 212.
our decision in Kimbrell I, Kimbrell filed a motion
in the Polk County Circuit Court challenging the
constitutionality of Arkansas Code Annotated section 5-73-103
and Arkansas Code Annotated section 16-93-303, arguing that
as of the date of his guilty plea, a disposition pursuant to
Act 346 did not constitute a sufficient predicate felony
conviction under section 5-73-103, as that statute was
codified in 1995. He noted that in 1995, section 5-73-103 did
not specifically address a disposition under Act 346, and
language doing so was not added to section 5-73-103 until
well after his 1995 plea. Kimbrell thus asserted that the
amendment "added a new requirement of dismissal and
expungement under § 16-93-303 in order for a defendant
to be entitled to relief from a charge of [section] 5-73-103
which is based on [an] Act 346 disposition." This new
requirement, he contended, constituted an unconstitutional
retroactive application of the law against him.
hearing on Kimbrell's motion, the circuit court entered
an order finding that neither section 5-73-103 nor section
16-93-303 was unconstitutional, either facially or as
applied. Following the circuit court's order, Kimbrell
entered a conditional no-contest plea pursuant to Arkansas
Rule of Criminal Procedure 24.3(b) to the count of being a
felon in possession of a firearm. Thereafter, the circuit
court sentenced him to a suspended imposition of sentence to
the Arkansas Department of Correction for a term of
forty-eight months. Kimbrell filed a timely notice of appeal
and now assigns error to the circuit court's finding that
neither statute is unconstitutional.