Brian K. Ellis v. Larry Norris

Annotate this Case
Brian K. ELLIS v. Larry NORRIS

97-104                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                  Opinion delivered May 7, 1998


1.   Constitutional law -- Ex Post Facto Clause -- United States and Arkansas Constitutions.
     -- Article 1,  10, of the United States Constitution provides
     that "(n)o state shall...pass any bill of attainder, ex post
     facto law, or law impairing the obligation of contracts"; 
     Article 2,  17, of the Arkansas Constitution similarly
     provides that "[n]o ... ex post facto law ... shall ever be
     passed"; the Arkansas Supreme Court interprets the Arkansas
     Constitution's ex post facto doctrine in a manner consistent
     with the interpretation of the parallel provision in the
     United States Constitution by the United States Supreme Court.

2.   Constitutional law -- Ex Post Facto Clause -- when law violates. -- A law is in
     violation of the Ex Post Facto Clause if it is retroactive and
     it disadvantages the accused by altering the definition of
     criminal conduct or by increasing the punishment for the
     crime. 

3.   Constitutional law -- Ex Post Facto Clause -- case law unhelpful to appellant. --
     Where appellant relied on Weaver v. Graham, 450 U.S. 24
     (1981), which held that an amendment that retroactively
     shortens the amount of automatic good time that can be earned
     by a prisoner violates the Ex Post Facto Clause, the supreme
     court concluded that the case would not be helpful to him
     unless the repeal of "extra good time" in Acts 536 and 558 of
     1993 actually operated to increase his sentence rather than
     merely removed his opportunity to reduce his time in prison;
     the court held that it did not.

4.   Constitutional law -- Ex Post Facto Clause -- Acts 536 and 558 of 1993 did not
     operate to increase appellant's sentence. -- The supreme court concluded
     that when Act 273 of 1987 was repealed in 1993, all that was
     lost was the opportunity to earn discretionary good time
     toward the reduction of a prison sentence; where appellant had
     not demonstrated that the Department of Correction denied him
     any extra good time that had already been recommended by the
     Director, the supreme court could not say that Acts 536 and
     558 of 1993 operated to increase his sentence.


     Appeal from Jefferson Circuit Court; Fred D. Davis, Judge;
affirmed.
     Appellant, pro se.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.

     Per Curiam. 
     In 1992, the appellant, Brian Ellis, pleaded guilty to
delivery of a controlled substance and was sentenced to twenty-five
years' imprisonment.  At the time that Ellis entered his guilty
plea, inmates in the Department of Correction could earn "good
time" credits that could be applied toward the reduction of their
sentences.  One form of good time credit was awarded automatically
by the Department to prisoners who were classified into one of four
categories.  The other form of good time credit was discretionary
meritorious good time, or "extra good time," which could be awarded
if a prisoner, among other things, completed rehabilitative
programs or performed special jobs.  In 1993, however, the General
Assembly passed Acts 536 and 558.  Both of these acts, which became
effective on January 1, 1994, repealed "extra good time."
     In April of 1996, Ellis filed a pro se petition for a
declaratory judgment and a petition for a writ of mandamus in the
Circuit Court of Jefferson County.  In the petition, Ellis alleged
that Acts 536 and 558 were ex post facto legislation because they
were applied retroactively to deny him the ability to earn extra
good time.  As exhibits to his petition, Ellis attached copies of
letters in which his application for "extra good time" was denied
by the Department of Correction.  The Circuit Court denied Ellis's
petition.  Ellis now appeals pro se from that order.
     In his argument on appeal, Ellis contends that Acts 536 and
558 violate the ex post facto clauses of the United States
Constitution and the Arkansas Constitution.  Ellis relies on the
premise, which has been suggested in some of the opinions of the
United States Supreme Court, that any law which is retroactively
applied to the petitioner's disadvantage, or which affects the
opportunity for an early release from prison, is in violation of
the ex post facto legislation clause of the Constitution of the
United States.  
     In response, the State first concedes that the Acts 536 and
558 have been retroactively applied to prisoners who were convicted
before January 1, 1994.  The State argues, however, that the United
States Supreme Court has retreated from the position upon which
Ellis relies, and now focuses on whether a law alters the
definition of criminal conduct or increases the penalty by which a
crime is punishable.  The State contends that because the
retroactive application of Acts 536 and 558 does neither, the ex
post facto clauses are not violated.
     Article 1,  10, of the United States Constitution provides
that "(n)o state shall...pass any bill of attainder, ex post facto
law, or law impairing the obligation of contracts...."  Article 2,
 17, of the Arkansas Constitution similarly provides, "No...ex
post facto law...shall ever be passed...."  Ellis does not offer
any argument, and none is readily available to us, showing why we
should interpret the ex post facto doctrine in a manner different
from the interpretation of the parallel provision in the United
States Constitution by the United States Supreme Court.
     In Calder v. Bull, 3 Dall. 386 (1798), Justice Chase explained
the four categories of legislative acts that would violate the Ex
Post Facto Clause:

         1st.  Every law that makes an action done before the
     passing of the law, and which was innocent when done,
     criminal; and punishes such action.  2d. Every law that
     aggravates a crime, or makes it greater than it was, when
     committed.  3d. Every law that changes the punishment, and
     inflicts a greater punishment, than the law annexed to the
     crime, when committed.  4th. Every law that alters the legal
     rules of evidence, and receives less, or different
     testimony, than the law required at the time of the commission
     of the offense, in order to convict the offender.


Over a century later, the Supreme Court succinctly restated these
principles in Beazell v. Ohio, 269 U.S. 167 (1925):

          The constitutional prohibition and the judicial
     interpretation of it rest upon the notion that laws, whatever
     their form, which purport to make innocent acts criminal after
     the event, or to aggravate an offense, are harsh and
     oppressive, and that criminal quality attributable to an act,
     either by the legal definition of the offense or by the nature
     or amount of the punishment imposed for its commission, should
     not be altered by legislative enactment, after the fact, to
     the disadvantage of the accused.

Thus, according to Calder and Beazell, a law is in violation if it
is retroactive and it disadvantages the accused by altering the
definition of criminal conduct or by increasing the punishment for
the crime.  See also Collins v. Youngblood, 497 U.S. 37 (1990);
Lynce v. Mathis,     U.S.    , 117 S. Ct. 891 (1997).
     The United States Supreme Court has disapprovingly noted,
however, that some of its opinions have broadened the categories to
include those measures which retroactively impose another form of
disadvantage on the accused.  In Collins v. Youngblood, supra, the
Court expressly overruled two cases, Kring v. Missouri, 107 U.S. 221 (1883), and Thompson v. Utah, 170 U.S. 343 (1898), which added
"any change which `alters the situation of a party to his
disadvantage'" to the Calder v. Bull analysis.
     While the Court in Collins v. Youngblood attempted to clarify
the Ex Post Facto Clause by reaffirming the analysis set forth in
Calder v. Bull and Beazell v. Ohio, the confusion persists because
of the difficulty in determining whether the disadvantage suffered
by the accused "alters the definition of criminal conduct or
increases the punishment for the crime," or whether it is another
form of disadvantage that would fall short of the sort requiring
relief under the Ex Post Facto Clause.  We must make that
determination in this case.
     The specific issue that must be decided is whether the
retroactive application of the amendment that takes away a
prisoner's ability to earn "extra good time" actually increases the
punishment for the crime for which Ellis was convicted, thereby
violating the Ex Post Facto Clause.  Clearly, Mr. Ellis is
disadvantaged by the retroactive application of the amendment
because he has lost the opportunity to earn extra good time that
can be applied toward the reduction of his sentence.  What we must
decide, however, is whether that disadvantage is the kind that is
prohibited by the Ex Post Facto Clause.
     In his argument on appeal, Ellis relies on Weaver v. Graham,
450 U.S. 24 (1981).  In that case the Supreme Court held that an
amendment that retroactively shortens the amount of automatic good
time that can be earned by a prisoner violates the Ex Post Facto
Clause.  Although Weaver dealt with automatic good time rather than
discretionary good time, it provides Ellis with the following
helpful language:

          We have previously recognized that a prisoner's
     eligibility for reduced punishment 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.
                               ***
          In Lindsey v. Washington, [citation omitted], we reasoned
     that "(i)t is plainly to the substantial disadvantage of
     petitioners to be deprived of all opportunity to receive a
     sentence which would give them freedom from custody and
     control prior to the expiration of the...prison term."  Here,
     petitioner is similarly disadvantaged by the reduced
     opportunity to shorten his time in prison simply through good
     conduct.
          
Ellis contends that the Court in Weaver recognized that a measure
that retroactively affects a prisoner's opportunity to reduce his
prison term is the kind of disadvantage that is prohibited by the
Ex Post Facto Clause.  Since Acts 536 and 558 retroactively
eliminate his opportunity to reduce his sentence through the
accrual of "extra good time," Ellis argues that Weaver is
controlling.
     In California Department of Correction v. Morales,     U.S.  
   , 115 S. Ct. 1597 (1995), however, the Supreme Court observed
that the language in the Weaver opinion was inconsistent with its
decision in Collins v. Youngblood, and most important, that it was
unnecessary to the outcome of the case.  In a footnote, the Court
wrote:

               Our opinions in Lindsey, Weaver, and Miller
     suggested that enhancements to the measure of criminal
     punishment fall within the ex post facto prohibition because
     they operate to the "disadvantage" of the accused offenders. 
     [citations omitted]  But that language was unnecessary to the
     results of those cases and is inconsistent with the framework
     developed in Collins v. Youngblood.  [citation omitted]
     [emphasis added].  After Collins the focus of the ex post
     facto inquiry is not on whether a legislative change produces
     some, ambiguous sort of "disadvantage," nor as the dissent
     seems to suggest, on whether an amendment affects a prisoner's
     "opportunity to take advantage of early release," [citation
     omitted], but on whether any such change alters the definition
     of criminal conduct or increases the penalty by which a crime
     is punishable.

We think a fair interpretation of this footnote is that it was not
a disadvantage in the form of the lost opportunity to reduce the
prison sentence that was dispositive in Weaver.  Rather, it was the
fact that a reduction in the amount of good time that was
automatically awarded operated to increase the length of time
Weaver would be in prison.  In other words, the disadvantage
suffered by Weaver, in the form of an increase in the punishment
for his crime, is within the scope of the Ex Post Facto Clause. 
Consequently, Weaver is not helpful to Ellis unless the repeal of
"extra good time" actually operates to increase his sentence,
rather than merely remove his opportunity to reduce his time in
prison.  We hold that it does not.
     Pursuant to Act 273 of 1987, upon recommendation by a
committee of the Board of Correction, "the director may recommend
to the Board of Correction up to ninety (90) additional days of
meritorious good time awards for such completion(s) as
rehabilitative programs, special jobs performed, and/or as a result
of heroic acts or other exceptional circumstances."  In other
words, by performing one of the acts specified in the statute, a
prisoner had the opportunity to add to the meritorious good time
that he has earned automatically.  It is clear from the wording of
the statute, however, that the time was also awarded at the
discretion of the Director.    
     We conclude that when Act 273 was repealed in 1993, all that
was lost was the opportunity to earn discretionary good time toward
the reduction of a prison sentence.  Ellis has not demonstrated,
moreover, that the Department of Correction denied him any extra
good time that had already been recommended by the Director. 
Accordingly, it can not be said that Acts 536 and 558 operated to
increase his sentence.
     Affirmed.