Two men convicted in 2007 of kidnapping, battery and more will have their parole eligibility examined after the Supreme Court determined they were not required to serve 70% of the enhancement sentence.
Supreme Court Associate Justice Rhonda Wood said in an opinion released Thursday that the court had determined the Arkansas Division of Correction incorrectly calculated the parole eligibility of Calvin Perry and Marcus Atkins related to their 15-year sentence enhancement for committing a felony with a firearm.
Perry and Atkins appealed a circuit court's denial of their petition for declaratory judgment, writ of mandamus and request for injunctive relief.
Perry, Atkins and Kyron Watkins were jointly tried and convicted in 2007 for their participation in a criminal action that involved kidnapping, battery, firearms and the presence of a minor. All three received different sentences.
Perry and Atkins requested a declaratory judgment, stating that the Division of Corrections' requirement that they serve 70% of their 15-year sentences under the firearm enhancement statute before becoming parole eligible violated their rights because it was ex post facto.
The defendants also sought a writ of mandamus and an order enjoining the Division of Corrections to adjust its parole eligibility to reflect that both should become parole eligible after serving one-third to one-half of their 15 year sentences.
The appellants argued in circuit court that the Division of Correction should treat the firearm enhancement as an unclassified felony, which is subject to parole eligibility after either one-half or one-third of the sentence is served. The circuit court denied the petition in June 2021, which led to Perry and Atkins filing their appeal with the Supreme Court.
While the appeal proceeded, the Supreme Court considered a similar issue in another case in which the defendant had been convicted in 2006 and received a 15-year enhancement for use of a firearm.
"We held the enhancement was subject to the parole-eligibility law in place when the offense was committed," Wood said in the opinion. "Thus, we concluded the enhancements should be treated like unclassified felonies and that the governing parole-eligibility law for that enhancement was Arkansas Code Annotated section 16-93-1301. This statute provides parole eligibility after serving either one-half or one-third of the sentence, depending on the circumstances."
The state recognized the recent decision made by the court and conceded the error in the Perry and Atkins case.
"We therefore reverse the circuit court's order and remand with directions for the court to issue the writ of mandamus and order the Division to calculate parole eligibility consistent with this opinion," Wood said.