Ramsey v. State

Wendell L. Griffen, Judge,

dissenting. I would reverse the trial court’s decision to revoke appellant’s suspended sentence because it is clearly erroneous. Although the State and the majority maintain that appellant was suspended from high school for ten days because of involvement in what they term “a gang-related incident at school,” the State filed a petition to revoke the suspended sentence based on appellant’s ten-day suspension from high school for merely saying,“What’s up?” during a confrontation involving several youths in a school hallway.

Before the suspension ended, appellant attempted to enroll in adult education classes because his parents and a cooperative education teacher had counseled him not to return to Fort Smith Northside Fligh School. It is self-evident that appellant could not make a good-faith effort to obtain a general education development certificate without enrolling in such a program; hence, it is preposterous to conclude that he failed to put forth a good-faith effort to obtain a high school diploma or a general education development certificate when all of the proof shows that he was attempting to enroll in a GED program when the revocation proceeding was commenced.

It is also perverse reasoning to hold that appellant’s suspension, two incidents of tardiness, and one incident of truancy during the month that he attended Northside Fligh School proved a failure to make a good-faith effort toward completion of a high-school diploma or GED certificate. No doubt Arkansas has thousands, if not tens of thousands, of residents who completed high-school or obtained their GED certificates but who were tardy or cut classes. There is no proof in the record about how many absences or tardy episodes were necessary in order to put a student in the Fort Smith School District at risk for expulsion or failing a grade. The very idea that a school district could expel or flunk a student for being tardy twice and having a single unexcused absence is absurd. If the school district legally charged with educating appellant and presumably knowledgeable about its own attendance and conduct criteria for good-faith effort did not expel appellant or flunk him because of his truancy, tardiness, and the suspension, it is astounding that courts would find that appellant had failed to make a good-faith effort to obtain an education, especially when the only other evidence before us is that appellant was trying to enroll in a GED program.

Finally, the result affirmed today should be understood in light of its practical consequences for appellant and our criminal justice system. The underlying premise of Ark. Code Ann. § 5-4-323(c) (Supp. 1995) is that there is a positive relationship between having a high school education and reducing or preventing crime. The basis for that premise is obvious given the mountain of data showing that the overwhelming majority of persons in our prison system lack a high-school diploma or general education development certificate. Thus, it is possible for prison inmates to enroll in GED programs and obtain the equivalent of a high-school education while in prison, but no one has introduced any proof about what degree of absenteeism or tardiness will disqualify the inmates from participating in adult education. So it is ironic, to put it mildly, that the people of Arkansas are now forced to house, feed, clothe, and possibly educate appellant — at government expense for five years — because he was tardy twice, had a single incident of truancy, and had been suspended from high-school for ten days while serving a suspended sentence. Of course, no one can force appellant to obtain an education in prison, so the very incentive that the General Assembly hoped to offer when it enacted § 5-4-323 may be lost to appellant and to society.

Subsection (c) exists to promote education, not increase the prison population. That we have overlooked this aim upon no proof shows what happens when the legal process strains at gnats and swallows camels. Therefore, I respectfully dissent.

Roaf, J., joins in this dissent.