Burgess v. State

Cite as 2016 Ark. 175

SUPREME COURT OF ARKANSAS
No. CR-15-613

MICHAEL L. BURGESS Opinion Delivered April 21, 2016
APPELLANT

V. APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
[NO. 60CR-10-4135]
STATE OF ARKANSAS
APPELLEE HONORABLE BARRY SIMS, JUDGE

AFFIRMED.

PAUL E. DANIELSON, Associate Justice

Appellant Michael L. Burgess appeals the Pulaski County Circuit Court’s denial of his

request for jail-time credit against his sentence of imprisonment. On appeal, Burgess argues

that he is entitled to the credit pursuant to statute. This case was certified to this court from

the Arkansas Court of Appeals in accordance with Arkansas Supreme Court Rule 1-2(d)

(2015), on the basis that it presents a significant issue needing clarification or development of

the law and a substantial question of law concerning the interpretation of an act of the General

Assembly. See Ark. Sup. Ct. R. 1-2(b)(5) & (6) (2015). We affirm.

Burgess was charged in June 2011 with one count of misdemeanor domestic battering

in the third degree and three counts of felony terroristic threatening in the first degree.1 He

1
Burgess was initially charged in December 2010. The information was amended in
June 2011.
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pleaded guilty to all charges and was placed on one year’s probation for the misdemeanor and

five years’ probation for the felonies. He was also ordered to pay a fine and court costs,

complete domestic-violence classes, and submit to random drug screens. Furthermore, as a

condition of his five years’ probation for the felonies, Burgess was ordered to serve 120 days’

confinement in the Pulaski County Jail.

In November 2012, the State filed a petition to revoke Burgess’s probation on the

grounds that he had failed to report, failed to pay supervision fees, failed to pay his fine and

court costs, and failed to provide his supervising officer with his current contact information.

Burgess entered a plea of guilty, and the circuit court ordered him to return to the original

terms of his probation. Accordingly, he was placed on forty-six months’ probation and

ordered to pay a fine and court costs.

In September 2014, the State filed a second petition to revoke Burgess’s probation,

alleging that he had again failed to report and failed to pay his fine and court costs and that

he had also failed to complete domestic-violence classes as ordered and had two positive drug

screens. Burgess again entered a plea of guilty. Pursuant to an agreement between the parties,

the circuit court sentenced Burgess to thirty-six months’ imprisonment in the Arkansas

Department of Correction on the three felony counts of first-degree terroristic threatening.

At the plea hearing, a dispute arose over the amount of jail-time credit to which Burgess was

entitled. The defense asserted that Burgess was entitled to 125 days, which included the 120

days he had previously served in confinement when he was first placed on probation. The

circuit court initially stated that it would award Burgess 125 days’ jail-time credit, but the

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State then objected, arguing that Burgess was not entitled to credit for the 120 days’

confinement. The circuit court set the matter for a later hearing.

At a hearing on April 6, 2015, Burgess’s counsel argued that he was entitled to jail-time

credit for the 120 days’ confinement in accordance with Arkansas Code Annotated section

5-4-404 (Repl. 2013). The State responded that the statute provides for credit for pretrial

incarceration, not confinement imposed as a condition of probation. The circuit court

rejected Burgess’s argument, stating, “He’s got a new 36 months so he doesn’t get credit for

what he has done before this new judgment.” The circuit court ultimately awarded Burgess

thirty-one days’ jail-time credit to account for the time he spent incarcerated between his

arrest and the final hearing. Burgess filed a timely notice of appeal from the sentencing order.

As his sole point on appeal, Burgess contends that the circuit court erred in failing to

award him jail-time credit against his three-year sentence for the 120 days he spent in

confinement when he was originally placed on probation. He maintains that section 5-4-404,

along with Arkansas Code Annotated section 16-93-309(c) (Supp. 2015), both provide for

jail-time credit for time served in confinement as a condition of probation. In response, the

State argues that section 5-4-404 concerns time served in pretrial incarceration, while section

16-93-309(c) concerns time served in incarceration following the revocation of probation;

thus, neither is applicable here.

As a threshold matter, the State submits that Burgess’s appeal is an improper attempt

to appeal from his plea of guilty to the State’s second revocation petition. Arkansas Rule of

Appellate Procedure–Criminal 1(a) (2015) provides that “there shall be no appeal from a plea

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of guilty or nolo contendere.” See Canada v. State, 2014 Ark. 336, 439 S.W.3d 42 (per

curiam). The rule provides an exception, not applicable here, for conditional pleas of guilty

pursuant to Arkansas Rule of Criminal Procedure 24.3(b). Two additional exceptions to the

general rule are (1) when there is a challenge to testimony or evidence presented in a

sentencing hearing separate from the plea itself, and (2) when the appeal is from a posttrial

motion challenging the validity and legality of the sentence itself. See id.; Nelson v. State, 2012

Ark. 217 (per curiam). Absent one of the exceptions, a defendant waives his right to appeal

when he pleads guilty. See Nelson, 2012 Ark. 217.

Burgess contends that an exception is applicable here—namely, that he is appealing

from the denial of a postjudgment motion challenging the validity and legality of his sentence.

As he points out, this court has previously permitted a defendant who pleaded guilty to appeal

from the denial of a postjudgment motion for jail-time credit. See Jones v. State, 301 Ark. 510,

785 S.W.2d 217 (1990). In a supplemental opinion on denial of rehearing in Jones, we

specifically rejected the State’s argument that the appeal was an improper attempt to appeal

from a guilty plea. See Jones v. State, 301 Ark. 510, 512-A, 789 S.W.2d 730, 730 (1990) (per

curiam) (supplemental opinion on denial of rehearing). We held that the defendant’s motion

for jail-time credit, filed eighteen days after his guilty plea, was timely, and that “we had

appellate jurisdiction to decide the correctness of the trial court’s decision.” Id. at 512-A, 789

S.W.2d at 731.

The State responds that the instant case is distinguishable from Jones because Burgess

did not file a postjudgment motion for jail-time credit. Instead, he requested the credit during

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his guilty plea hearing. According to the State, this case is more akin to Kennedy v. State, 2013

Ark. App. 140, wherein a defendant requested jail-time credit at his plea hearing, before

pleading guilty. The court of appeals dismissed the appeal, stating as follows:

Appellant’s appeal does not fall within any of the exceptions allowing an appeal
from a guilty plea. He . . . did not file a posttrial motion to modify his sentence.
Unlike the defendant in Jones, the jail-time credit case in which the supreme court
allowed an appeal from a guilty plea, appellant did not file a posttrial motion to modify
his sentence. Rather, he requested jail-time credit at the beginning of his plea hearing.
After discussion of the issue and a ruling by the judge from the bench that he was
denying appellant’s request for the additional jail-time credit, the court continued with
the plea hearing, and appellant pleaded guilty in all four cases. This is not an appeal
from the decision on a posttrial motion. The denial of jail-time credit was an integral
part of the acceptance of appellant’s guilty plea.

Id. at 3–4. The State relies on Kennedy in support of the proposition that, under Jones, a

postjudgment motion requesting jail-time credit is required to appeal from a guilty plea.

Burgess disagrees, pointing out that Jones did not directly address situations like this one,

where no postjudgment motion was filed. He argues that an opinion is precedent only on

issues that were actually presented for decision. See, e.g., McLeod v. Shaver, 198 Ark. 56, 127

S.W.2d 258 (1939). Burgess also argues that the Kennedy analysis is inapplicable here because

his request for jail-time credit was made after he pleaded guilty and was, therefore, not integral

to the circuit court’s acceptance of his plea.

In short, this case is not exactly like Jones or Kennedy; Burgess did not file a

postjudgment motion for jail-time credit, but his request did follow his guilty plea. Other

case law demonstrates that the latter fact is more important than the former. This court has

been consistent in holding that a defendant may appeal following a guilty plea when “the

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appeal is from a decision which was neither a part of the guilty plea acceptance nor the

sentencing procedure which was an integral part of the guilty plea acceptance.” Hodge v.

State, 320 Ark. 31, 33, 894 S.W.2d 927, 929 (1995). See also Henagan v. State, 302 Ark. 599,

791 S.W.2d 371 (1990) (dismissing appeal from the sentencing procedure which was an

integral part of the acceptance of the guilty plea); Brimer v. State, 295 Ark. 20, 746 S.W.2d

370 (1988) (allowing appeal from the denial of a posttrial motion to correct an illegal

sentence). Stated another way, where the appellant’s “assignment of error involves

nonjurisdictional issues that occurred subsequent to his guilty plea,” we will address the merits

of his argument on appeal. Pedraza v. State, 2014 Ark. 298, at 5, 438 S.W.3d 226, 229. In

Sherman v. State, 303 Ark. 284, 796 S.W.2d 339 (1990), this court explained the distinction

specifically with respect to requests for jail-time credit:

The distinction between Jones and Henagan is a fine one, but it is significant.
Jones appealed from the trial court’s failure to modify his sentence by applying jail time
credit. The validity of the sentence imposed as a direct result of his guilty plea was not
questioned. In Henagan, the appellant simply challenged the sentence he received
upon his plea of guilty. The key in each case was whether the appeal was from “the
sentencing procedure which was an integral part of the acceptance of [the] plea of
guilty.” Failure to credit jail time in Jones was not an integral part of the acceptance
of the guilty plea. Failure to impose probation instead of a term of years in Henagan
was an integral part of the acceptance of the guilty plea.

Id. at 286, 796 S.W.2d at 340 (emphasis in original) (alteration in original).2

2
In his reply brief, Burgess asserts that this court should overrule Kennedy. While the
analysis in that case was very brief, the holding comports with Sherman and other cases stating
that a defendant may appeal following a guilty plea when the assignment of error involves an
issue that was not an integral part of the guilty plea or the trial court’s acceptance of it.

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With this precedent in mind, we cannot say that Burgess’s request for jail-time credit

was an integral part of his guilty plea or of the circuit court’s acceptance of it. As he points

out, he had already entered his plea, and the circuit court had already accepted it and

sentenced him, before the issue of jail-time credit arose. In addition, the issue of jail-time

credit was heard, for the most part, at a subsequent hearing. Consequently, this case is

distinguishable from Kennedy, where the defendant’s request for jail-time credit was made at

the beginning of his plea hearing, before he pleaded guilty, and it was clear that the denial of

the request was an integral part of the acceptance of the plea. For these reasons, we have

jurisdiction, and we address the merits of Burgess’s appeal.

Burgess’s argument on appeal raises an issue of statutory interpretation. This court

reviews questions of statutory interpretation de novo because it is our responsibility to

determine what a statute means. See, e.g., Thompson v. State, 2014 Ark. 413, 464 S.W.3d 111;

Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002).

As Burgess correctly points out, sentencing is controlled entirely by statute. See, e.g.,

Ark. Dep’t of Corr. v. Williams, 2009 Ark. 523, 357 S.W.3d 867 (citing Elders v. State, 321

Ark. 60, 900 S.W.2d 170 (1995)). He contends that two separate statutes required the circuit

court to award him credit for the 120 days he spent in confinement when he was first placed

on probation, and he submits that this case must be remanded for resentencing accordingly.

First, Burgess relies on Arkansas Code Annotated section 5-4-404, which provides as

follows, in its entirety:

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If a defendant is held in custody for conduct that results in a sentence to
imprisonment or confinement as a condition of suspension or probation, the court, the
Department of Correction, or the Department of Community Correction shall credit
the time spent in custody against the sentence, including time spent in a local jail
facility awaiting transfer to the Department of Correction or the Department of
Community Correction.

Ark. Code Ann. § 5-4-404 (Repl. 2013). Burgess interprets this statute to mean that, because

he was held in confinement as a condition of probation, the circuit court should have credited

that time against his three-year sentence. The State interprets the statute to mean that a

defendant is entitled to credit only for time spent in custody prior to being sentenced—thus,

time spent in custody “for conduct that results in a sentence to imprisonment or confinement

as a condition of suspension or probation.” See id. (emphasis added). The State’s

interpretation is correct.

It is well settled that we construe criminal statutes strictly, resolving any doubts in

favor of the defendant. See, e.g., Thompson, 2014 Ark. 413, 464 S.W.3d 111. We also adhere

to the basic rule of statutory construction, which is to give effect to the intent of the

legislature. See id. We construe the statute just as it reads, giving the words their ordinary

and usually accepted meaning in common language, and if the language of the statute is plain

and unambiguous, and conveys a clear and definite meaning, there is no need to resort to rules

of statutory interpretation. See id.

Reading the plain language of section 5-4-404, the key phrase is “conduct that results

in.” This language in particular lends support to the State’s interpretation, that credit is given

only for time spent in pretrial incarceration. Burgess’s interpretation of the statute requires

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that we omit those words, thus: “If a defendant is held in custody for . . . confinement as a

condition of suspension or probation,” he is entitled to credit against the sentence. It is

axiomatic that, in interpreting a statute, we construe it so that no word is left void,

superfluous, or insignificant, and we give meaning and effect to every word in the statute, if

possible. See, e.g., Ainsworth v. State, 367 Ark. 353, 240 S.W.3d 105 (2006). In addition,

Burgess’s interpretation ignores the fact that there must be some subsequent sentence against

which the credit is applied. The statute provides only that the credit shall be applied “against

the sentence.” Ark. Code Ann. § 5-4-404. In Burgess’s particular case, obviously, he means

that it shall be applied against his ultimate sentence to three years’ imprisonment. But under

his interpretation, a defendant who is held in custody for a “sentence to imprisonment” would

be entitled to a credit against that very same sentence. In situations other than pretrial

incarceration, this would lead to an absurd result. See, e.g., State v. Owens, 370 Ark. 421, 260

S.W.3d 288 (2007) (stating that we will not interpret a statute to yield an absurd result that

defies common sense).

To the extent that section 5-4-404 is ambiguous, an examination of prior case law

addressing this statute supports the State’s interpretation over Burgess’s. We have applied

section 5-4-404 and its predecessor in situations involving pretrial incarceration almost

exclusively. See, e.g., Carey v. State, 268 Ark. 332, 596 S.W.2d 688 (1980); Laxton v. State,

99 Ark. App. 1, 256 S.W.3d 518 (2007); Hodges v. State, 267 Ark. 1112, 593 S.W.2d 494

(Ark. App. 1980). In Boone v. State, 270 Ark. 83, 85, 603 S.W.2d 410, 412 (1980), we

considered the predecessor to section 5-4-404 and said that “[j]ail-time credit is, therefore,

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appropriate when a defendant’s pretrial incarceration is due to his inability to make bail, but

is inappropriate for time served in connection with wholly unrelated charges based on

conduct other than for which the defendant is ultimately sentenced.” Perhaps most persuasive

is Allen v. State, wherein we interpreted the predecessor to section 5-4-404 and held as

follows:

We have always strictly construed this statute. The statute provides for jail time credit
against a sentence where the pretrial incarceration was imposed due to the conduct
that resulted in a conviction and sentence.

294 Ark. 209, 217, 742 S.W.2d 886, 891 (1988). See also Hughes v. State, 281 Ark. 428, 430,

664 S.W.2d 471, 472 (1984) (interpreting the predecessor to section 5-4-404 to mean that

a defendant “was entitled to credit for all the time he was held to answer for the conduct

giving rise to the sentence he received”).

The statute has been applied in a handful of other situations. For example, this court

has applied it to allow a defendant credit for time served before his guilty plea was set aside

on appeal. See Walters v. State, 267 Ark. 155, 621 S.W.2d 468 (1979). We held that the

defendant in Walters was entitled to credit against the sentence he received after he was tried

on remand. See id. In an unpublished opinion, the court of appeals applied section 5-4-404

to facts substantially similar to those presented here. See Crawford v. State, 1997 WL 769560

(Ark. App. 1997). In Crawford, the defendant was serving a period of confinement as a

condition of his suspended sentence. The State filed a petition to revoke while he was still

incarcerated; the defendant was found guilty and sentenced to imprisonment. The court of

appeals held that he was entitled to jail-time credit for the earlier period of confinement

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because “that period of detention resulted from the same acts upon which the revocation and

ultimate sentence to imprisonment were based.” Id. at 2. However, this holding relied on

the finding that the defendant’s “continued confinement was for final disposition” of the

charges to which he initially pleaded guilty and for which he was placed on suspended

sentence. Id. at 1. The same is not true in the instant case; Burgess served his entire 120-day

confinement period and was released before the State filed its petitions to revoke.

Accordingly, he did not serve a period of continued confinement that constituted final

disposition of the initial charges.

The legislative history of section 5-4-404 also supports the State’s interpretation. Prior

to a 2001 amendment, the statute read as follows:

If a defendant is held in custody for conduct that results in a sentence to
imprisonment, the court shall credit the time spent in custody against the sentence.

Ark. Code Ann. § 5-4-404 (Repl. 1997). This version was plain and unambiguous, and there

could be only one reasonable interpretation: that a defendant was entitled to credit for time

served while awaiting trial or sentencing. The 2001 amendment added the phrase “or

confinement as a condition of suspension or probation,” and a “sentence” to confinement was

clearly intended to be treated like a sentence to imprisonment for purposes of this statute.3

In addition, the statute authorizing and governing confinement as a condition of suspension

3
To the extent that the State suggests that the 120 days that Burgess served in
confinement actually constituted a sentence, we disagree. The confinement was obviously
a condition of probation authorized by Arkansas Code Annotated section 5-4-304.

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or probation—Arkansas Code Annotated section 5-4-304—previously contained an express

statement mandating jail-time credit under these circumstances:

If the suspension or probation of a defendant is subsequently revoked and the
defendant is sentenced to a term of imprisonment, the period actually spent in
confinement pursuant to this section shall be credited against the subsequent sentence.

Ark. Code Ann. § 5-4-304(e) (Repl. 2006). Under this version of the statute, Burgess would

have been unquestionably entitled to credit for the 120 days. However, the legislature chose

to remove subsection (e) altogether in 2011. We may presume that the legislature “did not

intend to pass an act without purpose.” See, e.g., Wells v. State, 337 Ark. 586, 589, 991

S.W.2d 114, 116 (1999). Thus, the fact that the legislature removed subsection (e) and has

not reinstated it or reenacted it elsewhere in the Criminal Code indicates an intention to

dispense with the provision.

For all of these reasons, we hold that section 5-4-404 is inapplicable to this case.

Burgess was not “held in custody for conduct that result[ed] in a sentence to . . . confinement

as a condition of suspension or probation”; in other words, he was not held in custody as a

matter of pretrial incarceration. Rather, he served time in confinement as a condition of

probation. He is not entitled to jail-time credit for that confinement under section 5-4-404.

Second, Burgess relies on Arkansas Code Annotated section 16-93-309(c), which

provides as follows:

If the suspension or probation of a defendant is subsequently revoked and the
defendant is sentenced to a term of imprisonment, any period of time actually spent
in confinement due to the original revocation shall be credited against the subsequent
sentence.

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Ark. Code Ann. 16-93-309(c) (Supp. 2015). This statute, however, is clearly and wholly

inapplicable here. Under its plain and unambiguous terms, it addresses a situation in which

a defendant’s suspension or probation is revoked twice, the second time resulting in a sentence

to imprisonment. It provides that a defendant in that situation is entitled to a credit against

his sentence to imprisonment for the time he served in confinement for the first revocation.

This interpretation is obvious from the statute’s use of the phrase “original revocation.”

Additionally, subsection (b) addresses a “subsequent revocation” and provides that a court may

revoke a defendant’s suspension or probation and sentence him to imprisonment upon a

subsequent revocation, even if, as a result of an earlier revocation, he was ordered to continue

on suspension or probation. It follows that subsection (c) also addresses subsequent

revocations.

Here, the 120 days that Burgess served in confinement did not result from a revocation

of his probation. Indeed, it preceded both of the revocation petitions filed by the State. As

noted above, the 120 days’ confinement constituted a condition of his probation.

Accordingly, section 16-93-309(c) provides no relief to Burgess.

Burgess is not entitled to jail-time credit under either section 5-4-404 or section 16-

93-309(c). Therefore, we affirm the circuit court’s denial of his request for jail-time credit.

Affirmed.

BAKER and HART, JJ., dissent.

JOSEPHINE LINKER HART, Justice, dissenting. The majority misreads the statute

as it applies to the facts presented here. Further, the majority adds words to the statute in

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order to support its interpretation. Also, after noting that the statute is ambiguous, the

majority does not apply the rule of lenity that is applicable when interpreting ambiguous

criminal statutes. Thus, I respectfully dissent.

Arkansas Code Annotated section 5-4-404 (Repl. 2013) provides as follows:

If a defendant is held in custody for conduct that results in a sentence to
imprisonment or confinement as a condition of suspension or probation, the court, the
Department of Correction, or the Department of Community Correction shall credit
the time spent in custody against the sentence, including time spent in a local jail
facility awaiting transfer to the Department of Correction or the Department of
Community Correction.

Thus, if a defendant is held in “custody” for “conduct” that results in a “sentence to

imprisonment,” then the defendant is entitled to “credit” against the “sentence” for the “time

spent in custody.”

Here, all three elements are present. First, Michael L. Burgess pleaded guilty to

“conduct,” specifically, three counts of first-degree felony terroristic threatening. Second, on

revocation, his “conduct” resulted in a “sentence of imprisonment” of thirty-six months.

Third, he was held in “custody” for 120 days for “conduct” that constituted the underlying

offense and not for violating a condition of probation. Moreover, the 120 days was not a

sentence; it was custody because that period of time is “not deemed a sentence to a term of

imprisonment.” Ark. Code Ann. § 5-4-304(b). Thus, he is entitled to credit for the time spent

in custody—120 days—against the sentence of thirty-six months’ imprisonment.

The majority concludes that “custody” means “pretrial incarceration.” In order to

reach that conclusion, the majority essentially adds the word “pretrial” to the statute as a word

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of limitation on the statute’s applicability. This is not a permissible method of statutory

construction. In construing statutes, this court will not add words to a statute to convey a

meaning that is not there. Our Cmty., Our Dollars v. Bullock, 2014 Ark. 457, at 18, 452

S.W.3d 552, 563.

Furthermore, the majority states that the statute is ambiguous. Thus, the applicable rule

of construction is that ambiguity concerning the ambit of criminal statutes should be resolved

in favor of lenity. State v. Colvin, 2013 Ark. 203, at 10, 427 S.W.3d 635, 641 (Baker, J.,

dissenting). Despite the majority’s assertion of ambiguity, however, it nevertheless construes

the statute against Burgess. Essentially, the majority has increased the statutory maximum for

any sentence by 120 days although this increase has not been expressly stated anywhere in our

criminal statutes. A sentence that exceeds the statutory maximum is an illegal sentence. See,

e.g., Bell v. State, 2015 Ark. 370, at 3 (per curiam).

Burgess is entitled to 120 days’ credit against his sentence. I respectfully dissent.

BAKER, J., joins in this dissent.

Kent C. Krause, Deputy Public Defender, by: Clint Miller, Deputy Public Defender,

for appellant.

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

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