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Wilson v. State

Court of Appeals of Arkansas, Division I

February 20, 2019

JOHN MARK WILSON APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT [NO. 16JCR-15-577], HONORABLE TONYA M. ALEXANDER, JUDGE

          Jeff Rosenzweig, for appellant.

          Leslie Rutledge, Att'y Gen., by: Brooke Jackson Gasaway, Ass't Att'y Gen., for appellee.

          DAVID M. GLOVER, Judge

         John 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.

         On June 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.

         On 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.

         On 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.

         The trial court entered an amended sentencing order nunc pro tunc. The amended sentencing order also required Wilson to register as a sex offender.

         Wilson 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.

         On May 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.

         At the 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.

         Wilson's 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 disagree.

         Our 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, ...


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