Stow v. Montgomery
| Decision Date | 13 May 2020 |
| Docket Number | No. CV-19-616,CV-19-616 |
| Citation | 601 S.W.3d 146,2020 Ark. App. 310 |
| Parties | Gerald STOW, Appellant v. John MONTGOMERY, Sheriff for Baxter County, Arkansas, in His Official Capacity, Appellee |
| Court | Arkansas Court of Appeals |
Jeremy Lowrey, for appellant.
David L. Ethredge, Baxter Cty. Prosecuting Att'y, by: Brad Brown, for appellee.
Appellant Gerald Stow, a convicted sex offender, filed a petition for declaratory judgment against appellee John Montgomery, Sheriff for Baxter County, Arkansas, asking that he no longer be required to register as a sex offender.1 Stow subsequently filed a motion for summary judgment, asserting that under the undisputed facts he was required to be removed from the sex-offender registry because his prior conviction did not fall within the scope of the Arkansas Sex Offender Registration Act of 1997, Ark. Code Ann. §§ 12-12-901 et seq. (Repl. 2016 & Supp. 2019) (The Act). After a hearing, the trial court entered an order stating that "after consideration of the arguments of counsel and reviewing both the briefs of the parties, and applicable cases presented therein, the Court hereby Finds and Orders the Plaintiff's Motion for Summary Judgment is denied." Stow now appeals from the trial court's order denying his motion for summary judgment, and we affirm.
Before reaching the merits of Stow's appeal, we first address our jurisdiction. An order denying summary judgment is generally not appealable. Nucor Holding Corp. v. Rinkines , 326 Ark. 217, 931 S.W.2d 426 (1996). However, Arkansas Rule of Appellate Procedure–Civil 2(a)(2) provides that an appeal may be taken from "[a]n order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action." Both parties here agree that we have appellate jurisdiction because there were no factual disputes below, and the order denying Stow's summary-judgment motion effectively determined and discontinued the action. We agree. When the trial court entered its order denying summary judgment, that order determined the action, and there was nothing left to be litigated. In Mercer v. Engle , 2012 Ark. App. 277, 2012 WL 1328983, this court explained that an order is final when it concludes the parties’ rights to the subject matter in controversy. Because the order being appealed in this case concluded the parties’ rights to the subject matter at issue, we have jurisdiction to hear the appeal.
In 1989, Stow pleaded guilty in Colorado to aggravated incest of his daughter. For this offense, Stow was incarcerated in Colorado before being paroled in 1994. Stow was discharged of his sentence and released from parole on April 16, 1997. Under Colorado law Stow's aggravated-incest conviction required him to register as a sex offender for the remainder of his life.
In 2002, Stow moved to Baxter County, Arkansas. He was subsequently required to register as a sex offender in Arkansas. In March 2017, Stow initiated this action by filing a petition for declaratory judgment in an attempt to be removed from the sex-offender registry based on his claim that he was not required to register under the applicable laws of Arkansas. As stated previously, the trial court ruled against him and Stow appeals.
In this appeal, Stow makes the same arguments that were raised and rejected below. In asserting that he is not required to register as a sex offender in Arkansas, Stow cites Ark. Code Ann. § 12-12-905 (Repl. 2016), which for purposes relevant to this appeal provides:
Stow asserts that subsection (a)(1) of this statute does not apply to him because his Colorado conviction occurred in 1989. He further contends that subsection (a)(2) is inapplicable because he completed his Colorado sentence on April 16, 2017, when he was released from parole. Stow asserts that he was not "serving a sentence of incarceration, probation, parole, or other form of community supervision" on or after August 1, 1997, and therefore under the plain language of the statute, the registration requirements "of this subchapter," i.e., The Act, do not apply to him.
Stow acknowledges that another subsection of The Act contains language stating that a person who lives in Arkansas shall register as a sex offender if he would be required to register as a sex offender in the jurisdiction where he was adjudicated guilty. Arkansas Code Annotated section 12-12-906(a)(2) provides, in pertinent part:
It is undisputed that Stow was adjudicated of a sex offense in Colorado and he would be required to register as a sex offender in that state. Stow, however, argues that the above statutory authority does not require him to register as a sex offender in Arkansas because it should not be read independently from section 12-12-905(a). Stow maintains that section 12-12-906(a)(2) is limited by the registration requirements of section 12-12-905, and more particularly subsection 12-12-905(a)(2), which provides that registration requirements apply under that subsection only if the person is serving a sentence of incarceration, probation, parole, or other form of community supervision as a result of an adjudication of guilt on or after August 1, 1997.
We review issues of statutory construction de novo. Pedraza v. State , 2015 Ark. App. 205, 465 S.W.3d 426. This means that we are not bound by the circuit court's decision, but in the absence of a showing that the circuit court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Id. The basic rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words the ordinary and usually accepted meaning in common language. Id. When the language is plain and unambiguous, we will not resort to rules of statutory construction, and the analysis stops. Id. The legislature is presumed to be familiar with the appellate courts’ interpretation of its statutes, and it can amend a statute if it disagrees with those interpretations; absent such an amendment, the interpretation of the statute remains the law. Sawyer v. State , 327 Ark. 421, 938 S.W.2d 843 (1997).
We conclude that Stow is required to register as a sex offender in Arkansas under the plain language of Ark. Code Ann. § 12-12-906(a)(2) because Stow would be required to register as a sex offender in the jurisdiction in which he was adjudicated guilty of a sex offense. As is clear on its face, this statute contains no limitations with respect to the when the sex offender was adjudicated guilty or required to register in the foreign jurisdiction. The statute makes clear that if the person is presently required to register in the foreign jurisdiction, he or she is required to register in Arkansas.2
This interpretation of The Act is consistent with our court's holding in Hammock v. State , 2009 Ark. App. 414, 322 S.W.3d 22. In that case, Hammock was found guilty of failure to register as a sex offender and appealed. On appeal, he argued that Arkansas’ sex-offender-registration requirement did not apply to him and that his conviction for failure to register as a sex offender was an unconstitutional ex post facto application of the law.
Hammock pleaded guilty to third-degree rape in the state of Washington in June 1996. He was sentenced to fourteen months in prison, with two additional years of community placement, and required to register as a sex offender in Washington. Hammock argued on appeal that Arkansas Code Annotated section 12-12-905 did not apply to him because it did not become effective until after his conviction.
We rejected Hammock's argument, relying exclusively on the provisions of Arkansas Code Annotated section 12-12-906(a)(2)(A)–(B)(i). We wrote:
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Magness v. Graddy
...this case concluded the parties’ rights to the subject matter at issue, we have jurisdiction to hear the appeal. See Stow v. Montgomery , 2020 Ark. App. 310, 601 S.W.3d 146.2 Appellee alleged below in paragraph 8 of her answer and in her motion to dismiss that appellants’ claims are barred ......