Johnson v. State

Annotate this Case
Carlton JOHNSON v. STATE of Arkansas

CR 97-978                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 12, 1998


          
1.   Statutes -- construction of -- legislative acts relating to
     same subject must be construed together and in harmony if
     possible. -- It is a principle of statutory construction that
     legislative acts relating to the same subject or having the
     same purpose must be construed together and in harmony if
     possible; such statutes are said to be in pari materia when
     they relate to the same person or thing, to the same class of
     persons or things, or have the same purpose or object. 

2.   Statutes -- construction of criminal statutes enacted at
     different times -- court presumes that general assembly was
     aware of prior act. -- When presented with the construction of
     criminal statutes that were enacted at different times, the
     supreme court presumes that when the general assembly passed
     the later act, it was well aware of the prior act. 

3.   Statutes -- purpose of Arkansas Criminal Code -- enacted to
     eliminate archaic and overlapping statutes. -- The Arkansas
     Criminal Code was enacted in 1975 in order to eliminate or
     replace archaic and overlapping statutes, and to develop a
     uniform method of grading offenses; these purposes are evident
     in the plain language of the Code's general provisions, in
     which the Code is made applicable to all offenses.

4.   Statutes -- alternative sentencing available for offense of
     keeping gambling house -- case reversed and remanded. -- The
     sentencing provision of the gambling-house statute, Ark. Code
     Ann.  5-66-103(a) (Repl. 1993), is not mandatory and
     exclusive of the alternative-sentencing provisions of the
     Criminal Code; the subsequent enactment of the Arkansas
     Criminal Code provided an alternative-sentencing option for
     all offenses not explicitly excluded by statute; the gambling-
     house statute and the Criminal Code can be read in harmony
     when one defines the term of imprisonment and the other
     permits the court to impose suspension or probation; the case
     was reversed and remanded for the sole purpose of allowing the
     trial court to consider alternative sentencing provided under
     the Criminal Code, Ark. Code Ann.  5-4-301--5-4-311 (Repl.
     1993).
 

     Appeal from Pulaski Circuit Court; Chris Piazza, Judge;
reversed and remanded.
     James P. Clouette, for appellant.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.,
for appellee.

     Ray Thornton, Justice.
     Appellant Carlton Johnson appeals the sentence he received for
keeping a gambling house.  He contends that the trial court
mistakenly concluded that alternative sentencing, under the
Arkansas Criminal Code, was not available for this offense.  We
agree with Johnson's contention and remand this case for the sole
purpose of allowing the trial court to consider alternative
sentencing provided under the Criminal Code, Ark. Code Ann.  5-4-
301--5-4-311 (Repl. 1993).
     Johnson, a first-time offender, pled guilty to keeping a
gambling house in violation of Ark. Code Ann.  5-66-103(a) (Repl.
1993).  While the trial court went on record to express a
preference to impose probation, it interpreted the law to prohibit
alternative sentencing and, reluctantly, sentenced Johnson to the
minimum prison term.  The court allowed Johnson to remain free on
bond pending the outcome of this appeal.  
     The issue on appeal is whether the sentencing provision of the
gambling-house statute is mandatory and exclusive of the
alternative-sentencing provisions of the Criminal Code.  Johnson
contends that the alternative-sentencing provisions, permitting
suspended sentence or probation, are applicable to his offense,
even though the gambling-house statute has its own penal provision. 
He argues that, even if the gambling-house sentencing provision may
have been mandatory at one time, the subsequent enactment of the
Criminal Code provides an alternative-sentencing option for all
offenses not explicitly excluded by statute.  The State responds
that the sentencing language of the gambling-house statute is
mandatory and exclusive of the alternative-sentencing provisions. 
Johnson is correct, therefore we reverse and remand.
     The gambling-house statute,  5-66-103(a) (Repl. 1993) of the
Arkansas Code, to which Johnson pled guilty, provides in relevant
part as follows:  
          Every person who shall keep, conduct, or operate .
     . . any gambling house or place where gambling is carried
     on . . . shall be deemed guilty of a felony and on
     conviction shall be confined in the Department of
     Correction for not less than one (1) year nor more than
     three (3) years.  (Emphasis added.)  
     As previously mentioned, the trial judge, at the time of
sentencing, indicated a willingness to place Johnson on probation,
but the judge expressed his belief that the gambling-house offense
was an unclassified offense enacted in 1913, and was not covered by
the alternative-sentencing provisions of the Criminal Code, which
were enacted in 1975.  See Ark. Code Ann.  5-4-101 -- 618 (Repl.
1993):  Chapter 4 of the Criminal Code on Disposition of Offenders. 
Specifically, the State argues that while  5-4-104(a) of the Code
provides that "no defendant convicted of an offense shall be
sentenced otherwise than in accordance with [Code provisions]", the
Publisher's Notes following  5-4-104 read, "provisions within acts
possessing their own penal provisions will control."  In other
words, because the gambling-house statute has its own penal
language requiring confinement in the Department of Correction for
not less than one year, the State submits the alternative-
sentencing laws under the Criminal Code do not apply in Johnson's
case.  The trial court agreed.
     The gambling-house statute and its penal provision were
previously before this court in the case of Reeder v. State, 248
Ark. 902, 455 S.W.2d 92 (1970), when the statute, containing the
same language, was located at Ark. Stat. Ann.  41-2001 (Repl.
1964).  Reeder was convicted of operating a gambling house, and
even though the statutory offense contained the mandatory "not less
than one year" confinement language, the trial court fixed Reeder's
punishment at one year, but suspended it for a period of three
years.  On appeal, Reeder complained about the three-year
suspension, but this court upheld the validity of the sentencing. 
In upholding Reeder's suspended sentence, the Reeder court relied
on and applied the suspension and probation provisions provided in
Ark. Stat. Ann.  43-2331 (Supp. 1969), the probation and parole
statute.
     The Criminal Code was enacted in 1975 after the Reeder
decision, and the Code provided new alternative-sentencing
procedures.  Nonetheless, the sentencing and probation provisions
in  43-2331, later codified as Ark. Code Ann.  16-93-401 (1987)
(the probation and parole statute), were continued separately from
the Criminal Code.  As a consequence,  16-93-401 and its
suspension and probation provisions were still available, under
Reeder, to the court when anyone was convicted and sentenced under
the gambling-house law.  
     It was not until Act 586 of 1991 (the repealing statute) that
the General Assembly specifically repealed  16-93-401.  The
General Assembly did so to clarify Arkansas's law regarding the
suspension and probation of sentences.  Section 2 of the repealing
act incorporated its provisions into the Criminal Code, and Section
5 announced the General Assembly's reasons for repealing  16-93-
401.  Section 5 stated that  16-93-401 was confusing, conflicting,
and was also unnecessarily duplicative of Criminal Code provisions. 
In short, the General Assembly made it clear that after the
repealing act's passage, only the Criminal Code and its
alternative-sentencing provisions would apply, instead of those
suspension and probation provisions in  16-93-401.
     The State cites to the supplemental opinion on denial of
rehearing in Lovell v. State, 283 Ark. 425, 434-434-C, 681 S.W.2d 395, 396 (1984) for the proposition that, when a statute contains
a mandatory sentence, the sentence to imprisonment cannot be
reduced or suspended.  That decision is inapplicable here.  In
Lovell, we said that "[t]he drafters of the criminal code
recognized that there may be statutes later enacted which have
their own penal provisions, unaffected by the criminal code."  Id.
at 434-B, 681 S.W.2d  at 396.  (Emphasis added.)  In reaching its
holding, the Lovell court related that the drafters of the 1975
Criminal Code recognized that there would be statutes later enacted
which would have their own penal provisions, unaffected by the
Code.  In the present case, we are dealing with an earlier 1913
penal provision that this court held, in Reeder, was subject to
suspension and probation laws that were in effect prior to and
after enactment of the Criminal Code.   
     This determination is also consistent with the principle of
statutory construction that legislative acts relating to the same
subject or having the same purpose must be construed together and
in harmony if possible.  Reed v. State, 330 Ark. 645, 649, ___
S.W.2d ___, ___ (1997).  Such statutes are said to be in pari
materia "when they relate to the same person or thing, to the same
class of persons or things, or have the same purpose or object." 
2B Norman J. Singer, Sutherland Statutory Construction  51.03 (5th ed.
1992).  In the case before us, we are presented with criminal
statutes that were enacted at different times.  In construing these
statutes, we presume that when the general assembly passed the
later act, it was well aware of the prior act.  Reed, 330 Ark. at
649, ___ S.W.2d at ___.  
     In conclusion, the Criminal Code was originally enacted to
eliminate or replace archaic and overlapping statutes, and to
develop a uniform method of grading offenses.  Brimer v. State, 295
Ark. 20, 27-28, 746 S.W.2d 370, 374 (1988) (citing John DiPippa,
Suspending Imposition and Execution of Criminal Sentences:  A Study
of Judicial and Legislative Confusion, 10 U. Ark. Little Rock L.J. 367
(1987-88)).  These purposes are evident in the plain language of
the Code's general provisions, in which the Code is made applicable
to all offenses.  See Ark. Code Ann.  5-1-103(a), (b); 5-4-
104(a).   In this case, we conclude that the gambling-house statute
and the Criminal Code can be read in harmony when one defines the
term of imprisonment and the other permits the court to impose
suspension or probation.  For the reasons stated above, we reverse
and remand this case for resentencing.