inline"> Cite as 2014 Ark. 250

SUPREME COURT OF ARKANSAS
No. CR-13-579

RICHARD ELI HART Opinion Delivered May 29, 2014
APPELLEE
APPEAL FROM THE UNION
V. COUNTY CIRCUIT COURT
[NO. CR-12-330]

STATE OF ARKANSAS HONORABLE HAMILTON H.
APPELLANT SINGLETON, JUDGE

AFFIRMED AS MODIFIED.

JIM HANNAH, Chief Justice

This appeal involves an allegation of the imposition of an illegal sentence and requires

this court to determine whether Arkansas Code Annotated section 5-4-702(a) (Supp. 2011),

which permits enhanced penalties for certain offenses committed in the presence of a child,

applies to the offense of manslaughter, Arkansas Code Annotated section 5-10-104 (Supp.

2011). Appellant, Richard Eli Hart, was charged with first-degree murder. The State alleged

that he shot and killed his girlfriend, Amanda Fory, in the presence of her fifteen-month-old

twin boys. After a jury trial, Hart was convicted of the lesser-included offense of

manslaughter, for which he was sentenced to a term of ten years’ imprisonment. Hart was

also sentenced to additional years of imprisonment pursuant to two enhancement statutes.

He was sentenced to fifteen years under Arkansas Code Annotated section 16-90-120(a)

(Supp. 2011), for having committed the felony with a firearm, and he was sentenced to ten

years under section 5-4-702(a), based on the jury’s finding that he committed the crime in
Cite as

2014 Ark. 250


the presence of a child. The circuit court entered a sentencing order and an amended

sentencing order that sentenced Hart to a total of thirty-five years in prison. Hart filed a

posttrial motion, contending that the enhanced sentence imposed by the circuit court

pursuant to section 5-4-702(a) was an illegal sentence and should be set aside. That motion

was deemed denied. Hart originally appealed to the Arkansas Court of Appeals, which

recommended certification of the appeal to this court because it involved an issue of first

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

General Assembly. This court accepted certification, and our jurisdiction is proper pursuant

to Arkansas Supreme Court Rule 1-2(d)(2) (2013). Hart does not challenge the sentences

imposed for the manslaughter conviction or the firearm enhancement under section 16-90-

120(a). His sole point on appeal is that his ten-year enhanced sentence for committing

manslaughter in the presence of a child is not authorized under section 5-4-702(a) and

therefore constitutes an illegal sentence. We affirm as modified.

       In Arkansas, sentencing procedures are governed by statute, and no one may be

sentenced other than in accordance with the Criminal Code. See

Ark. Code Ann. § 5-4

-

104(a) (Supp. 2011) (stating that “[n]o defendant convicted of an offense shall be sentenced

otherwise than in accordance with this chapter”). Section 5-4-702(a) provides:

       Any person who commits a felony offense involving homicide, § 5-10-101 — § 5-
       10-103, assault or battery, § 5-13-201 et seq., or domestic battering or assault on a
       family member or household member, § 5-26-303 — § 5-26-309, may be subject to
       an enhanced sentence of an additional term of imprisonment of not less than one (1)
       year and not greater than ten (10) years if the offense is committed in the presence of
       a child.

       Hart was convicted of manslaughter under section 5-10-104, and he contends that,

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2014 Ark. 250


pursuant to the plain language of section 5-4-702(a), an enhanced sentence was not

authorized for manslaughter. The State responds that the General Assembly intended that the

enhancement be applied to all violent felonies committed in the presence of a child—not just

to the crimes that are numerically cross-referenced within section 5-4-702(a).

       This court reviews issues of statutory interpretation de novo as it is our responsibility

to determine what a statute means. E.g., Stivers v. State,

354 Ark. 140, 144

118 S.W.3d 558, 561

 (2003). We construe criminal statutes strictly, resolving any doubts in favor of the

defendant.

Id.,

118 S.W.3d at 561

. We also adhere to the basic rule of statutory construction,

which is to give effect to the intent of the legislature.

Id.,

118 S.W.3d at 561

. 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 occasion to resort to rules of statutory interpretation.

Id.

 at 144–45,

118 S.W.3d at 561

.

       The plain language of section 5-4-702(a) states, in relevant part, that “[a]ny person

who commits a felony offense involving homicide, § 5-10-101 — § 5-10-103 . . . may be

subject to an enhanced sentence of an additional term of imprisonment of not less than one

(1) year and not greater than ten (10) years if the offense is committed in the presence of a

child.” The statute refers specifically to the homicide offenses codified at sections 5-10-101

through 5-10-103. Therefore, any person who commits capital murder, see

Ark. Code Ann. § 5-10-101

, first-degree murder, see

Ark. Code Ann. § 5-10-102

, or second-degree murder,

see

Ark. Code Ann. § 5-10-103

, may be subject to an enhanced sentence under section 5-4-


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702(a). The remaining homicide offenses in title 5, chapter 10 of the Criminal

Code—manslaughter, see

Ark. Code Ann. § 5-10-104

, negligent homicide, see

Ark. Code Ann. § 5-10-105

, and physician-assisted suicide, see

Ark. Code Ann. § 5-10

-106—are not

referenced in the statute. Consequently, any person who commits a felony offense involving

homicide under sections 5-10-104 to -106 is not subject to an enhanced sentence under

section 5-4-702(a).

       A sentence is void or illegal when the circuit court lacks the authority to impose it.

E.g., Cross v. State,

2009 Ark. 597, at 4

357 S.W.3d 895, 898

. In this case, the circuit court

lacked the authority to impose an enhanced sentence under section 5-4-702(a) because that

statute does not authorize an enhanced sentence for the offense of manslaughter. Therefore,

Hart’s ten-year sentence pursuant to section 5-4-702(a) was illegal.

       This court may correct an illegal sentence in lieu of reversing and remanding for

resentencing. See, e.g., Roberts v. State,

324 Ark. 68, 74

919 S.W.2d 192, 195

 (1996)

(“Where the trial court’s error has nothing to do with the issue of culpability and relates only

to punishment, we may correct the error in lieu of reversing and remanding the case.”).

Accordingly, we affirm the circuit court’s sentence of ten years’ imprisonment imposed for

Hart’s manslaughter conviction, and we affirm the circuit court’s sentence of fifteen years’

imprisonment imposed under section 16-90-120(a), but we strike the circuit court’s sentence

of ten years’ imprisonment imposed under section 5-4-702(a).

       Affirmed as modified.

       Gary McDonald, for appellant.

       Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.



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