LITTLE ROCK — The state Court of Appeals on Wednesday ruled that a Drew County circuit judge ordered an illegal sentence for a woman by requiring her to complete a drug treatment program as part of her 365-day sentence in the state Department of Community Correction.
The court sent the case back to Judge Robert Bynum Gibson Jr. with directions to strike the unlawful condition on the sentence of Dewana Dione Runion and to enter a new judgment and disposition order consistent with its opinion.
After Gibson revoked her probation and sentenced her, Runion argued in her appeal that the sentence was illegal because it placed a condition on her incarceration that is not authorized under Arkansas Code Annotated 5-4-104 (b).
The state argued that the sentence was lawful because she was sentenced to probation — not incarceration — with the added condition of confinement, which is permitted under Arkansas Code Annotated 5-4-303 (d) (4) and 5-4-304 (c).
In June 2009, Runion pleaded guilty to fraudulent use of a credit or debit card and was sentenced to 36 months’ probation under the Community Punishment Act, according to the court.
Runion’s conditions of probation prohibited her from consuming controlled substances and required that she submit to random drug testing, report to her probation officer and pay probation supervision fees.
In October 2010, the state filed a petition to revoke probation, alleging that Runion violated the terms and conditions. After a hearing in January 2011, the trial court revoked her probation. The court sentenced her to 365 days’ confinement and stated that she was to complete a nine-month drug program provided by the department.
In an opinion written by Chief Judge Larry D. Vaught, the appeals court said the trial court’s statements at the conclusion of the revocation hearing reflect its intent to incarcerate Runion.
While the trial court stated that it was interested in having Runion receive drug treatment, it also made it clear that it wanted Runion to serve time for her probation violations, stating, “I’m going to lock you up,” and “it’s the sentence and judgment of this court that [Runion] serve one year, 365 days ...,” according to the appeals court.
The ruling said that at no time did the trial court state it was sentencing Runion to probation.
“When considering both the order and the trial court’s statements at the revocation hearing, we hold that the intention of the trial court was to incarcerate Runion for 365 days,” the appeals court said. “As part of her incarceration, the trial court also required her to attend a drug program. Because such a condition to incarceration is not authorized by Arkansas Code Annotated section 5-4-104 (d), the sentence was illegal.”
Judges Waymond M. Brown and Doug Martin agreed.
At the Arkansas Court of Appeals, this case is CACR11-235, DeWana Rione Runion v. State of Arkansas.
Arkansas, Pages 14 on 05/31/2012