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Kimbrell v. State

Court of Appeals of Arkansas, Division I

October 25, 2017

TRENT A. KIMBRELL APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE POLK COUNTY CIRCUIT COURT [NO. 57CR-14-5] HONORABLE JERRY RYAN, JUDGE

          Danielson Law Firm, PLLC, by: Erik P. Danielson, for appellant.

          Leslie Rutledge, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.

          PHILLIP T. WHITEAKER, Judge

         Appellant 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.

         I. Procedural Background

         Kimbrell 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.

         Kimbrell 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 petition.[1]

         In 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.

         In 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.

         Kimbrell 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.

         Following 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.

         After a 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.

         II. Stand ...


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