After more than 38 years in prison for murdering a Little Rock nurse in her driveway, two men sent to prison as 16-year-old boys are poised to leave prison as middle-aged men after an Arkansas Supreme Court-ordered resentencing hearing on Monday.
The only thing that could keep Frederick Pennington, 54, and Billy Ray Hale, 55, locked up is if either they or prosecutors appeal Pulaski County Circuit Judge Herb Wright's decision to sentence Hale to 10 years in prison and Pennington to 20 years.
Absent a life sentence, the longest term Wright could have given, using 1978 sentencing laws, was 50 years in prison.
Wright also ordered the men to serve suspended sentences, 40 years for Hale and 30 for Pennington, after their prison time is determined to have been completed.
The sides have 30 days in which to challenge the judge's ruling, although no one was ready to make that decision after the hearing.
How the men will be released is also a question. Defense attorney Jeff Rosenzweig said prison officials will have to assess the men's standing to determine whether they have completed their sentences through the time they've already spent in prison -- 38 years and 170 days -- or whether they must go through the parole process to be released.
Sentencing rules in place in 1978 required defendants convicted of first-degree murder to serve half their sentence before qualifying for parole. Now, they have to serve 70 percent of their sentence.
Monday's resentencing came about because the Arkansas Supreme Court vacated the Little Rock men's life terms in October 2014 after ruling that their punishment for the October 1977 slaying of Uvil May Ussery had been illegal. The pair had been promised parole improperly because early release is not allowed on life sentences, the court ruled.
The then-16-year-olds fatally shot Ussery, a 64-year-old mother of two, outside her South Oak Street home so they could steal her purse.
It was the last of three robberies attributed to the pair that resulted in their pleading guilty in March 1978 to first-degree murder, reduced from capital murder, four counts of aggravated robbery and a first-degree battery charge.
Neither man has admitted to shooting Ussery, and Pennington now denies he was involved at all. Authorities believe that Pennington was the killer, based on witness descriptions of the gunman.
Deputy prosecutor Scott Duncan asked the judge to impose a life sentence, arguing that's what the men agreed to through their pleas.
But the judge said the court record shows that they were guaranteed a chance at parole in exchange for pleading guilty.
Duncan said that their records in prison, 40 disciplinary actions for Hale and 102 for Pennington, showed they should stay locked up.
The prosecutor also asked Wright not to second-guess the sentencing judge, Richard B. Adkisson, saying the jurist, who died in 2011, could have imposed a lesser sentence.
"I don't think these individuals have been rehabilitated," he told the judge. "I believe the [1978] court had the opportunity to consider the full range of penalties and chose life. It was the right sentence."
Wright said he's bound to follow the Supreme Court's interpretation of their plea deal. The high court could have determined that the parole promise was the result of a typographical error, but the justices did not reach that conclusion, Wright said.
Defense attorney Brandy Turner argued that it would be ludicrous to believe that two 16-year-olds would have accepted a life sentence or been advised to take one.
The men still could appeal a life sentence under the U.S. Supreme Court's 2012 ruling that limits the circumstances under which a minor can be sentenced to life.
Granting the men a sentence that allows them to qualify for immediate release would keep them from further challenging their punishment, Turner said.
"I don't know how anyone thinks they could have bargained for [a life sentence]", she said. "I think the best thing for justice is to put an end to this now and sentence them to 50 years."
When the pair were sentenced in March 1978, two days before Hale turned 17, prosecutors said Ussery was shot as she resisted a robber's attempt to steal her purse.
Ussery, a nurse at the State Hospital, had just arrived home after picking up her 73-year-old sister from the hospital, where the older woman had been keeping watch over her daughter, who was suffering from cancer.
The two teens were in a stolen car driven by a third teen who pleaded guilty to aggravated robbery in exchange for a 10-year sentence after prosecutors said he never got out of the vehicle.
Ussery's son, Russell, died at age 80 in December, but her 78-year-old daughter, Robbie Lee McKelvy of North Little Rock, told the judge that Ussery was "the best mother in the world, the best grandmother in the world and my best friend."
Her mother was in good health and could have expected many more years if she had not been killed, McKelvy said.
"I think about my mother every day. There are things I want to tell her, things I want to ask her," she said.
Metro on 04/12/2016