Morris v. State

Andree Layton Roaf, Judge,

concurring. I concur in affirming this case, in which appellant Bobby Morris was sentenced as an habitual offender to serve forty years in the Arkansas Department of Correction for the offense of nonsupport. The evidence presented reflected that Morris had accumulated over $40,000 in child- support arrearages dating back to his 1986 divorce, which placed him well within the class B felony category, for which the sentencing range for habitual offenders with four or more convictions is five to forty years. The unrebutted evidence presented at trial also reflected that Morris had no record of income for over seven years; that he was disabled and without a home; that his prior convictions were drug-related; and, as was suggested by the prosecutor, that his problem stemmed in part from being a dmg addict.

Prior to 1997, the offense of criminal nonsupport, Ark. Code Ann. § 5-26-401 (Repl. 1997) was a Class A misdemeanor, except that it became a Class D felony if the person absented himself from Arkansas to avoid the duty to support, or had previously been convicted of nonsupport. However, the statute was amended in 1997 to provide in pertinent part that the offense be a Class D felony where the amount owed is more than $5,000 and a Class B felony where the amount owed is more than $25,000.1

There are undeniably hundreds of noncustodial parents in the State of Arkansas who fall into Morris’s category, and while I cannot question the wisdom of the legislature in Arkansas in enhancing the punishment for nonpayment of support in this fashion, it is hardly a sensible use of our limited prison resources or of taxpayer funds to exact such a level of punishment for the offense in question.

While the greatly enhanced penalty may serve to motivate those capable of securing the funds to liquidate their child support arrearages, the Bobby Morrises of this world will undoubtedly not have that ability, and will in essence face what resembles “debtors’ prison” if this statute is as aggressively pursued across Arkansas as was the case with Morris.

The offense was further amended in 1999 to provide in pertinent part for the following felony classes according to the amount of past due support:

A Class D felony if:
(C) The person owes more than two thousand five hundred dollars ($2,500) in past-due child support, pursuant to a court order or by operation of law, and the amount represents at least four (4) months of past-due support.
(2) Nonsupport is a Class C felony if the person owes more than ten thousand dollars ($10,000) but less than twenty-five thousand dollars ($25,000) in past-due support, pursuant to a court order or by operation of law.
(3) Nonsupport is a Class B felony if the person owes more than twenty-five thousand dollars ($25,000) in past-due child support, pursuant to a court order or by operation of law.