Bosnick v. Lockhart

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672 S.W.2d 52 (1984)

283 Ark. 206

David BOSNICK, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Corrections and Arkansas Board of Pardons and Paroles, Appellees.

No. 84-97.

Supreme Court of Arkansas.

July 16, 1984.

Rehearing Denied September 24, 1984.

*53 Nussbaum, Newcomb & Hendrix by Robert A. Newcomb, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Patricia G. Cherry, Asst. Atty. Gen., Little Rock, for appellees.

HOLLINGSWORTH, Justice.

The appellant was convicted for a murder committed on December 31, 1968 and sentenced to life in prison. On October 30, 1978, the appellant escaped from prison, for which he was subsequently convicted and sentenced to an additional three years. The three year term was ordered to run consecutively to the life sentence already being served by the appellant. This appeal is before us under Sup.Ct.R. 29(1)(c) as it presents the interpretation of an act of the General Assembly.

When the appellant's first crime was committed, Act 50 of 1968, codified at Ark. Stat.Ann. § 43-2807 (Supp.1971) was in effect. Under that act, appellant contends that he should be considered eligible for parole on the life sentence he is serving after fifteen years. Appellant further asserts that the three year consecutive sentence he is serving for escape cannot add more than three years to the time to serve before being eligible for parole. At the time of the appellant's escape from prison, Act 93 of 1977, codified at Ark.Stat.Ann. § 43-2828 et. seq. (Repl.1977) was in effect. Appellee contends that this subsequent crime was committed in 1978 and therefore falls within the purview of Act 93 of 1977 and that the three year sentence received by him is added to his original life sentence and treated as a single commitment for parole eligibility purposes. The appellee asserts that under the 1977 act the appellant is not eligible for release on parole until his life sentence is commuted to a term of years by executive clemency. The appellee applied the 1977 act and refused to consider the appellant for parole. The appellant filed an action in the Jefferson County Circuit Court for declaratory judgment and a writ of mandamus directing the appellees to consider him for parole under the 1968 act. The trial court granted the appellee's motion for summary judgment and denied the requested relief. On appeal, we reverse.

The appellant contends that the application of the 1977 act is a violation of the ex post facto provisions of the Arkansas and U.S. Constitutions because that act was not in effect at the time his crime was committed. We agree.

We have said that "a parole statute less favorable to one who had been sentenced prior to its passage than the parole law existing at the time of his sentencing would be unconstitutional as an ex post facto law, in violation of Art. 2 § 17 of the Arkansas Constitution." Davis v. Mabry, Director, 266 Ark. 487, 585 S.W.2d 949 (1979); see also Poe v. Housewright, Comm'ner, 271 Ark. 771, 610 S.W.2d 577 (1981). The same rule applies to this situation. The 1977 parole eligibility act was not in effect when the appellant's first crime was committed. The fact that he committed a second felony after the passage of the act does not affect his parole eligibility for the first crime. The U.S. Supreme Court addressed this same issue in Weaver v. Graham, 450 U.S. 24, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981). At issue there was a Florida statute which repealed an earlier statute and reduced the amount of "gain time" for good conduct that was deducted from a convicted prisoner's sentence. The Supreme Court found that the application of the new statute to the petitioner in that case was unconstitutional. The Court held:

*54 The ex post facto prohibition forbids the Congress and the States to enact any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." (citations omitted) Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed. (cites omitted) ... In accord with these purposes, our decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.... The presence or absence of an affirmative, enforceable right is not relevant, however, to the ex post facto prohibition, which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.... [I]t is the effect, not the form, of the law that determines whether it is ex post facto. The critical question is whether the law changes the legal consequences of acts completed before its effective date.... We have previously recognized that a prisoner's eligibility for reduced imprisonment is a significant factor entering into both the defendant's decision to plea bargain and the judge's calculation of the sentence to be imposed ... Second, we have held that a statute may be retrospective even if it alters punitive conditions outside the sentence.

For the reasons enunciated in Weaver, we hold that it was unconstitutional to apply the 1977 act retroactively to the appellant's first conviction. By this decision, we are not making a determination that the appellant is entitled to be paroled. What we are saying is that the appellant's parole eligibility for the first crime he committed must be determined by Act 50 of 1968, the law in effect at the time he was sentenced.

We reverse and direct the trial court to issue a writ of mandamus consistent with this opinion.

Reversed.

DUDLEY, J., not participating.