Hervey v. State
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Cite as 2011 Ark. 113
SUPREME COURT OF ARKANSAS
No.
CR10-923
MARVIS LASHAUN HERVEY
APPELLANT
VS.
STATE OF ARKANSAS
Opinion Delivered March 17, 2011
APPEAL FR O M THE PU LASKI
COUNTY CIRCUIT COURT,
NO. CR2009-1093,
HON. MARION HUMPHREY, JUDGE
APPELLEE
AFFIRMED.
COURTNEY HUDSON HENRY, Associate Justice
Appellant Marvis Lashaun Hervey appeals a Pulaski County Circuit Court order
convicting him of first-degree murder and sentencing him to a total of thirty-eight years’
imprisonment, which included a term of ten years imposed as a firearm enhancement,
pursuant to Arkansas Code Annotated section 16-90-120 (Supp. 2009). For reversal, appellant
argues that his ten-year sentence was illegal because section 16-90-120 was repealed by
substitution with the enactment of Arkansas Code Annotated section 5-4-505 (Repl. 1993).1
We have jurisdiction, p ursuant to Arkansas Supreme Court Rule 1-2(b)(5) (2010), as we are
asked to overrule precedent. We affirm.
Because appellant does not challenge the sufficiency of the evidence, we provide only
a brief recitation of the facts. On March 19, 2009, the State filed a single-count felony
information against appellant, alleging that appellant committed first-degree murder by
1
See Ark. Code Ann. § 5-4-505, repealed by Acts of March 16, 1993, Nos. 532 &
550, 1993 Ark. Acts 1471, 1602.
Cite as 2011 Ark. 113
purposely causing the death of Harry Droughter. In its felony information, the State also
alleged that appellant caused the victim’s death by employing a firearm in the charged offense
and that any sentence of imprisonment should be enhanced pursuant to section 16-90-120.
On February 10, 2010, appellant proceeded to a jury trial. The following day, the jury found
appellant guilty of both first-degree murder and employing a firearm to commit the offense.
The jury sentenced appellant to an aggregate sentence of thirty-eight years’ imprisonment
with ten years as a firearm enhancement. On February 23, 2010, the circuit court entered an
amended judgment reflecting appellant’s conviction and sentence, and appellant timely filed
a notice of appeal.
For his sole point on appeal, appellant argues that his ten-year sentence for firearm
enhancement was an illegal sentence. Specifically, appellant contends that section 16-90-120,
formerly codified in 1969 at Arkansas Statutes Annotated sections 43-2336 and 43-2337, was
repealed by substitution with the enactment of section 5-4-505, formerly codified at Arkansas
Statutes Annotated section 41-1004, when the new Arkansas Criminal Code became
effective on January 1, 1976. Appellant concedes that sections 43-2336 and 43-2337 were
not expressly repealed but were repealed by substitution based upon an irreconcilable conflict
with section 41-1004. Appellant asserts that section 41-1004 was narrower in scope because
it excluded from firearm enhancement those felonies that contained an element of
employing, using, carrying, or furnishing a deadly weapon. Finally, appellant urges this court
to overrule its recent decision in Neely v. State, 2010 Ark. 452, ___ S.W.3d ___, which was
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Cite as 2011 Ark. 113
decided by a 4-3 vote, because two new justices now sit on the court and did not decide
Neely. In response, the State argues that appellant’s request to overrule Neely must be rejected
based upon the doctrine of stare decisis.
Appellant recognizes our recent decision of Neely, supra, where we rejected the
argument that section 16-90-120 was impliedly repealed with the passage of section 5-4-505.
In Neely, we concluded that the two statutes could be read harmoniously and held that
section 16-20-120 was merely a sentence enhancement, apart from the felony offense, while
section 5-4-505 provided an increase in the initial, maximum sentence for the felonious
offense. Id. Appellant now asks us to overrule Neely. However, we recently declined to
overturn Neely in Sesley v. State, 2011 Ark. 104, ___ S.W.3d ___, where the appellant
presented this precise argument and asked this court to reconsider its previous position now
that two members of the Neely majority have been replaced. We declined to reverse our
recent precedent and affirmed Sesley’s conviction and sentence based upon our holding in
Neely.
In the present case, appellant’s argument fails based upon the doctrine of stare decisis.
Under stare decisis principles, appellate courts are bound to follow prior case law. Anderson
v. State, 367 Ark. 536, 242 S.W.3d 229 (2006). It is well settled that precedent governs until
it gives a result that is so patently wrong or manifestly unjust that a break becomes
unavoidable. Id. Here, appellant’s request to overrule our prior case law because two new
justices now serve on this court flies in the face of that well-established principle of law. On
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Cite as 2011 Ark. 113
the subject of stare decisis, we assert the following:
Stare decisis is a maxim the application of which is necessary, not only to secure
private rights, but to preserve and maintain the authority and confidence due to courts
of last resort. In contemplation of law, we occupy this bench as a court, not as
individual judges. It ought not to be understood that the law will or does change with
the opinion of the judges who, for a time, sit here. When the law is solemnly declared
by this court, there it ought to rest, and it ought not to be understood that, when new
judges come upon the bench, the people may expect a change in well-established rules
and principles that protect their rights. In this way only will the certain and equal
administration of justice to all be secured.
Stewart v. Bd. of Supervisors of Polk Cnty., 30 Iowa 9, 18 (1870) (Beck, J., dissenting). This
court strongly adheres to the doctrine of stare decisis. Therefore, for the reasons articulated
in Neely, supra, and Sesley, supra, we reject appellant’s argument and affirm appellant’s
conviction and sentence.
Affirmed.
H ANNAH, C.J., and C ORBIN and D ANIELSON, JJ., dissent.
JIM H ANNAH, Chief Justice, dissenting. I respectfully dissent for the same reasons I
dissented to Sesley v. State, 2011 Ark. 104, ____ S.W.3d ____, Neely v. State, 2010 Ark. 452,
___ S.W.3d ___, and Williams v. State, 364 Ark. 203, 217 S.W.3d 817 (2005). Arkansas Code
Annotated section 16-90-120 (Supp. 2009) was repealed. The General Assembly has not
reenacted section 16-90-120. It is not possible to read a repealed statute to be harmonious
with an existing statute. Again, the majority sanctions and approves of the imposition of a
sentence in violation of the law.
C ORBIN and D ANIELSON, JJ., join.
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