FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT
[NO. 16JCR-15-577], HONORABLE TONYA M. ALEXANDER, JUDGE
Rosenzweig, for appellant.
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
M. GLOVER, Judge
Mark Wilson appeals from the June 6, 2018 amended order that
sentenced him to thirty-six months' probation and ordered
him to register as a sex offender. He raises two points on
appeal: (1) the trial court erred in resentencing him because
Arkansas Code Annotated section 16-93-303 (Supp. 2013)
prohibits the sealing of his offense but does not prohibit
deferred adjudication, and (2) he should not be required to
register as a sex offender. We affirm.
11, 2015, Wilson was charged with one count of distributing,
possessing, or viewing matter depicting sexually explicit
conduct involving a child under Arkansas Code Annotated
section 5-27-602 (Repl. 2013). He pleaded guilty to the
charge on August 30, 2016. Pursuant to Arkansas Code
Annotated section 16-93-303, the guilty plea was accepted; he
was sentenced to thirty-six months' suspended probation,
deferred conditioned upon his continuing counseling and
complying with all terms of probation. He was not ordered to
register as a sex offender.
March 7, 2017, the State filed a motion to amend the judgment
to conform with the law, explaining that Wilson pleaded
guilty to an offense described in Arkansas Code Annotated
section 5-27-602, which made him ineligible for any sentence
under the First Offender Act. In addition, the State
contended that by pleading guilty to an offense under section
5-27-602, Wilson was required by law to comply with the
sex-offender-registration requirements pursuant to section
12-12-905 (a)(1) (Supp. 2007). Wilson responded, disputing
the State's interpretation of the cited statutes.
April 18, 2018, the State filed a motion to correct
Wilson's illegal sentence. The State contended the
sentence was illegal because Wilson could not plead guilty to
the offense under section 5-27-602 and be sentenced under
section 16-93-303(a) of the first-offender statutes. The
State further contended that because Wilson pleaded guilty to
a section 5-27-602 offense, he was required by law to comply
with the sex-offender-registration requirements.
trial court entered an amended sentencing order nunc pro
tunc. The amended sentencing order also required Wilson to
register as a sex offender.
moved to vacate the amended sentencing order, arguing (1) he
was eligible to plead guilty and be sentenced pursuant to
section 16-93-303; (2) he should not be required to register
as a sex offender because his original sentence was entered
prior to a finding of guilt or the entry of a judgment of
guilt under section 16-93-303(a)(1)(A)(i), and section
12-12-905 requires registration as a sex offender only after
an adjudication of guilt; and (3) the trial court violated
his due-process rights by not allowing him to be heard before
amending the sentencing order.
7, 2018, the trial court entered an order finding
Wilson's original sentence was illegal because he was not
eligible to avail himself of the first-offender deferred
adjudication under sections 16-93-301 et seq.; however, the
court set aside the amended sentencing order and scheduled a
hearing for June 1, 2018.
June 1 hearing, the trial court heard arguments from both
sides but ultimately agreed with the State. An amended
sentencing order was entered on June 6, 2018, reflecting
Wilson was convicted under section 5-27-602, sentencing him
to thirty-six months' probation, and ordering him to
register as a sex offender. This appeal followed.
two points of appeal are so interrelated they can best be
discussed together. At the core of his two arguments, he
contends that, for someone who commits a sex offense, section
16-93-303 prohibits only the sealing of the record. He takes
the position that the trial court is permitted to employ the
deferred-adjudication portion of the
"first-offender" statute for persons who commit a
sex offense. He then argues that, with the
deferred-adjudication portion of the statute available to
him, the trial court erred in requiring him to register as a
sex offender. He contends Arkansas Code Annotated section
12-12-905(b) (Repl. 2016) provides that "a person
who has been adjudicated guilty of a sex
offense and whose record of conviction will be
expunged under the provisions of §§ 16-93-301 - 303
is not relieved of the duty to register or verify
registration," and because he was "not
adjudicated guilty of a sex offense" under his
interpretation of the deferred-adjudication portion of the
statute, he should not be required to register as a sex
offender under section 12-12-905(b). (Emphasis added.) We
research convinces us the issues Wilson raises have already
been settled. In Thomas v. State, 349 Ark. 447,
458-59, 79 S.W.3d 347, ...