Appellant, Jose Feliciano Williams, appeals from the circuit court’s judgment and commitment order in which he was convicted of aggravated robbery and misdemeanor theft of property. He was sentenced as a habitual offender with two prior felony convictions to twelve years’ imprisonment for the aggravated robbery conviction. Additionally, he was sentenced to one month in the county jail for the misdemeanor theft-of-property conviction and to five years’ imprisonment for having used a firearm to commit aggravated robbery. The two sentences for imprisonment were ordered to be served consecutively, with the one month jail time to be served concurrently. Williams now contends on appeal that: (1) the five-year sentence imposed on him for having used a firearm to commit aggravated robbery was forbidden by the plain meaning of Arkansas Code Annotated § 5-4-104(a) (Repl. 1997); and (2) five years of Williams’s seventeen-year aggregate sentence of imprisonment is illegal, because it results from stacking a general statute imposing a sentence for use of a firearm to commit a felony offense onto the specific sentence enhancement for the use of a deadly weapon contained in the definition of aggravated robbery. We affirm the judgment of conviction.
The facts in this case are gleaned from the testimony at the ensuing trial. On the day of the crimes, Ms. Muc Yohe was working as a cashier at the North Little Rock Corner Store, which is a convenience store. On that day, she testified that Williams entered the store and robbed her at gunpoint. According to Ms. Yohe, when Williams threatened to shoot her, she gave him all the money that was in the cash register. Ms. Yohe specifically identified Williams at trial as the person who robbed her. Her testimony was corroborated by a videotape of the robbery, which was played for the jury, and by the testimony of Melvin Jefferson. Jefferson had given Williams a ride to the grocery store. When they arrived at the store, Jefferson did not go inside with Williams, but testified that after Williams got into Jefferson’s car, Williams told him to speed up and said to him: “Man, I done hit these folks.” According to Jefferson, Williams’s statement indicated that Williams had robbed or done something to somebody. Jefferson testified that Williams was holding a “big pistol” in his hands when he made that statement.
Subsequently, the State filed a felony information against Williams, charging him with aggravated robbery and misdemeanor theft of property. In addition, the State charged that Williams was subject to a sentence enhancement for using a firearm to commit a felony and as a habitual offender with more than one, but less than four, prior felony convictions. A jury trial followed, and Williams was found guilty of the two charges, and his sentence was enhanced.
For his first point on appeal, Williams claims that the five-year sentence imposed on him under Ark. Code Ann. § 16-90-120(a-b) (1987), for having used a firearm to commit aggravated robbery was forbidden by § 5-4-104(a).1 According to Williams, because his commission of aggravated robbery occurred after the passage of the Arkansas Criminal Code in 1975 and because aggravated robbery is defined in the Arkansas Criminal Code, Williams’s' sentencing should be governed solely by that Code, and not by any other statutory provision. To support his argument, he points to § 5-4-104(a), which reads: “No defendant convicted of an offense shall be sentenced otherwise than in accordance with this chapter.” He further asserts that because Ark. Code Ann. § 5-l-103(a) (Repl. 1997) provides that the provisions of the Arkansas Criminal Code “shall govern the prosecution for any offense defined by this code and committed after January 1, 1976,” his crime, which occurred in 2004, is governed only by the Arkansas Criminal Code. He concludes that § 16-90-120(a-b) is not included in the Arkansas Criminal Code and cannot be applied.
Additionally, Williams cites this court to Johnson v. State, 331 Ark. 421, 961 S.W.2d 764 (1998), for the proposition that this court has interpreted § 5-4-104(a) to bar the application of sentencing provisions that were enacted prior to the Arkansas Criminal Code. Because § 16-90-120(a-b) was enacted in 1969, six years before the enactment of the Arkansas Criminal Code, Williams urges that it cannot be used to enhance his sentence. Finally, citing, e.g., Brewer v. Fergus, 348 Ark. 577, 79 S.W.3d 831 (2002), Williams notes that the use of the word “shall” in § 5-l-103(a) means that the General Assembly intended mandatory compliance with the statute, unless an absurdity would result. He contends that rather than an absurd result, precluding the application of § 16-90-120(a-b) to this case would result in greater uniformity and consistency in sentencing, which was one of the General Assembly’s goals in enacting the Arkansas Criminal Code in 1975.
This court has consistently described its canons of statutory interpretation in criminal matters as follows:
The basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature. Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993); Mountain Home Sch. Dist. v. T.M.J. Builders, Inc., 313 Ark. 661, 858 S.W.2d 74 (1993). In interpreting a penal statute, “[i]t is well settled that penal statutes are strictly construed with all doubts resolved in favor of the defendant, and nothing is taken as intended which is not clearly expressed.” Hales v. State, 299 Ark. 93, 94, 771 S.W.2d 285, 286 (1989). However, even a penal statute must not be construed so strictly as to defeat the obvious intent of the legislature. Russell v. State, 295 Ark. 619, 751 S.W.2d 334 (1988). In this regard, we will not construe penal statutes so strictly as to reach absurd consequences which are clearly contrary to legislative intent. Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993); Williams v. State, 292 Ark. 616, 732 S.W.2d 135 (1987); Ashing v. State, 288 Ark. 75, 702 S.W.2d 20 (1986).
Hunt v. State, 354 Ark. 682, 686, 128 S.W.3d 820, 823 (2003).
The crux of Williams’s argument is that there is a conflict between § 5-4-104(a) and § 16-90-120(a-b). In this case, these two statutory provisions can be read in a harmonious manner. Section 5-4-104(a) can be viewed as referring only to the initial sentence imposed based on the crime for which the defendant was convicted, and § 16-90-120(a-b) can be read as referring only to a sentence enhancement that may be added to the initial sentence.
Looking at the clear language of § 16-90-120(a-b), we observe that the legislature intended the statute to serve as an enhancement of the original sentence for the convicted crime, as the statute itself says that the sentence enhancement is an “additional period of confinement.” Ark. Code Ann. § 16-90-120(a) (emphasis added). We further note that when § 5-4-104(a) was enacted in 1975, the legislature did not choose to repeal or overrule § 16-90-120(a-b). This is important, since in Johnson v. State, supra, we have noted that when presented with the challenge of construing criminal statutes that were enacted at different times, the court presumes “that when the general assembly passed the later act, it was well aware of the prior act.” 331 Ark. at 425, 961 S.W.2d at 766 (holding that the Arkansas Criminal Code and the gambling-house statute can be read in harmony where one defines the term of imprisonment and the other allows the court to impose suspension or probation).
We hold that § 5-4-104(a) and § 16-90-120(a-b) can be read harmoniously to mean that § 16-90-120(a-b) is only a sentence enhancement, while the Arkansas Criminal Code provides the minimum sentences to be imposed for each specific offense.
Williams next argues that the five-year sentence imposed on him pursuant to § 16-90-120(a-b) is also illegal, because it results from stacking a general enhancement statute imposing a sentence for the use of a firearm to commit a felony offense onto the specific sentence enhancement for the use of a deadly weapon contained in the definition of aggravated robbery. Specifically, Williams argues that “aggravated robbery” is a specific sentence enhancement of robbery and is applicable only to robbery, while § 16-90-120(a-b) applies generally as an enhancement statute. Williams relies on two cases to support his argument — Banks v. State, 354 Ark. 404, 125 S.W.3d 147 (2003), and Lawson v. State, 295 Ark. 37, 746 S.W.2d 544 (1988).
We first disagree with Williams that the Banks and Lawson cases control the outcome of this appeal. In Banks, the charge was third-degree domestic battering under Ark. Code Ann. § 5-26-305 (Repl. 1997). That statute provides that the misdemeanor charge will be automatically converted into a Class D felony, if the defendant had been convicted of a previous battering charge within the previous five years. Because of the enhanced felony charge based on the prior battering conviction for which the defendant was convicted, we held that it was error to enhance the defendant’s sentence further based on the general habitual offender statute, codified at Ark. Code Ann. § 5-4-501 (1987).
Similarly, in Lawson, the defendant was charged with DWI. At the time, he had at least three prior DWI offenses within three years of the DWI for which he was charged, which caused the charge to be enhanced to a felony. We held that enhancement had already occurred under the DWI statute and that the general habitual offender statute, § 5-4-501, could not precipitate an additional sentence. Again, we held that the stacking of the two enhancement statutes could not occur.
We view the situation in the instant case to be different. Here, we are not dealing with a statute like domestic battering or DWI that specifically provides for enhancement due to the commission of prior offenses of the same type. Rather, the stand-alone offense is aggravated robbery, which in the instant case is robbery armed “with a deadly weapon.” Ark. Code Ann. § 5-12-103(a)(l) (Repl. 1997). Moreover, the aggravated robbery statute does not contain an enhancement from misdemeanor to felony status, as was the case in Banks and Lawson.
The General Assembly has enacted § 5-12-103, making it a separate offense to commit robbery “armed with a deadly weapon.” In addition, the General Assembly has given the sentencing court discretion to enhance the sentence up to fifteen years pursuant to § 16-90-120(a-b), when a firearm is employed in the commission of a felony. Because of the discretion vested in the sentencing court, we do not view this as an illegal stacking of sentences such as we had in Banks and Lawson for reasons already stated.2
Affirmed.
Hannah, C.J., and Imber, J., dissent.Williams adds that according to Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003), an appellant may challenge an illegal sentence for the first time on appeal. Because he is, in fact, challenging the legality of the sentence in this case, he maintains that his failure to raise this argument before the circuit court does not bar this appeal. Relying on Mays v. State, 351 Ark. 26, 89 S.W.3d 926 (2002), the State agrees with appellant that to the extent he now claims that his sentence is an illegal sentence on its face, the issue may be raised for the first time on appeal.
We are aware of a previous statute that mandated an increased sentence of fifteen years as an enhancement when a firearm was used in the commission of a felony, but that statute was repealed by the General Assembly in 1994. See Acts 532 and 550 of1993, repealing Ark. Code Ann. § 5-4-505 (repeal effective January 1, 1994). The repealing acts left § 16-90-120(a-b) intact, which leaves the enhancement to the discretion of the sentencing court. Though previous case law discussed the illegality of stacking the enhancement under the repealed statute on top of the sentence for aggravated robbery, see Rust v. State, 263 Ark. 350, 565 S.W.2d 19 (1978), that case law did not involve or affect § 16-90-120 (a-b). Moreover, Williams does not argue the Rust case or the repealed statute in this appeal as grounds for reversal.