Isaac Strong v. State of Arkansas

Cite as 2021 Ark. App. 142
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-20-153

Opinion Delivered: March 31, 2021
ISAAC STRONG
APPELLANT
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT, FIFTH
DIVISION
V. [NO. 60CR-17-1426]

HONORABLE WENDELL GRIFFEN,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED

PHILLIP T. WHITEAKER, Judge

Appellant Isaac Strong was convicted by a Pulaski County jury of residential burglary,

theft of property, and fleeing. Strong waived his right to be sentenced by the jury, and the

Pulaski County Circuit Court sentenced him to thirty years in the Arkansas Department of

Correction. On appeal, Strong does not challenge the sufficiency of the evidence supporting

his convictions. Instead, he argues that the circuit court erred in finding that he was eligible

to be sentenced as a “three striker” pursuant to Arkansas Code Annotated section 5-4-

501(d)(1) (Supp. 2019) because of his prior convictions for burglary in Texas. We find no

error and affirm.

We begin by setting out the relevant Arkansas statutory provisions governing the

sentencing of habitual offenders pursuant to Arkansas Code Annotated section 5-4-501. For

purposes of this opinion, this statute contains four relevant sections. Section 5-4-501(d)(1)
provides that a defendant who has been convicted of a felony involving violence and who

previously has been convicted of two or more felonies involving violence shall be sentenced

to an extended term of imprisonment without eligibility for parole or community

correction. Section 5-4-501(d)(2)(A)(xi) designates residential burglary as a felony involving

violence, and section 5-4-501(d)(2)(B) permits designation of a “conviction of a comparable

felony involving violence from another jurisdiction” as a felony involving violence. Finally,

section 5-4-501(d)(3)(B) gives the circuit court at the time of sentencing discretion to

determine whether a felony conviction from another jurisdiction is comparable to an

enumerated felony involving violence under Arkansas criminal law. Accordingly, our

standard of review is whether the circuit court abused its discretion in determining that

Strong’s Texas burglary convictions are comparable to Arkansas’s residential-burglary

statute.

In 2018, the State of Arkansas charged Strong with one count each of residential

burglary, theft of property, fleeing, and first-degree criminal mischief. The State additionally

sought a so-called “three strikes” enhancement under Arkansas Code Annotated section 5-

4-501(d). The State alleged that in July 2006, Strong pled guilty to two separate counts of

burglary of a habitation in Dallas County, Texas, and that these convictions were felonies

involving violence. 1

1
The State also sought a “large habitual” enhancement under section 5-4-501(b)
because Strong had been previously convicted of more than four felonies.

2
Before trial, Strong moved in limine to prohibit the State from using his prior

burglary convictions from Texas as proof that he had two or more prior felony convictions

involving violence. In his motion, Strong argued that the Texas burglary statute was not

sufficiently comparable to Arkansas’s residential-burglary statute so as to constitute a felony

involving violence under section 5-4-501(d)(2)(B). The circuit court denied his motion,

and the matter proceeded to a jury trial.

After the jury convicted Strong of residential burglary, theft of property, and fleeing, 2

he waived his right to be sentenced by the jury and elected to be sentenced by the court.

During sentencing, the State introduced copies of Strong’s Texas convictions, and the circuit

court sentenced him as a three-strike violent felon to thirty years in the Arkansas Department

of Correction. Strong filed a timely notice of appeal, and he now argues that the circuit

court erred in finding that his two prior felony convictions from Texas were felonies

involving violence that made him eligible for the enhanced sentencing provisions of section

5-4-501(d).

Because our analysis necessarily requires a comparison of the Arkansas and Texas

burglary statutes, we set forth both of them below. The Arkansas burglary statute is titled

“Residential and Commercial Burglary.” Under Arkansas law, a person commits residential

burglary if he or she enters or remains unlawfully in a residential occupiable structure of

another person with the purpose of committing in the residential occupiable structure any

offense punishable by imprisonment. Ark. Code Ann. § 5-39-201(a)(1) (Repl. 2013). A

2
The State nolle prossed the first-degree criminal-mischief charge.

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“residential occupiable structure” means “a vehicle, building, or other structure: (i) [i]n

which any person lives; or (ii) [t]hat is customarily used for overnight accommodation of a

person whether or not a person is actually present.” Ark. Code Ann. § 5-39-101(8)(A)

(Supp. 2019). Residential burglary is codified as a Class B felony. Ark. Code Ann. § 5-39-

201(a)(2).

Under Arkansas law, a person commits commercial burglary if he or she enters or

remains unlawfully in a commercial occupiable structure of another person with the purpose

of committing in the commercial occupiable structure any offense punishable by

imprisonment. Ark. Code Ann. § 5-39-201(b)(1). A “commercial occupiable structure” is

defined as “a vehicle, building, or other structure in which: (A) [a]ny person carries on a

business or other calling; or (B) [p]eople assemble for a purpose of business, government,

education, religion, entertainment, or public transportation[.]” Ark. Code Ann. § 5-39-

101(2). Commercial burglary is codified as a Class C felony. Ark. Code Ann. § 5-39-

201(b)(2).

We now turn in more detail to the relevant Texas statute. Strong entered guilty

pleas under Texas Penal Code Annotated section 30.02 (West 2003), a Texas statute titled

“Burglary,” which provides in relevant part as follows:

(a) A person commits an offense if, without the effective consent of the owner,
the person:

(1) enters a habitation, or a building (or any portion of a building) not then
open to the public, with intent to commit a felony, theft, or an assault; or

(2) remains concealed, with intent to commit a felony, theft, or an assault, in
a building or habitation; or

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(3) enters a building or habitation and commits or attempts to commit a
felony, theft, or an assault.

....

(c) Except as provided in Subsection (c-1) or (d), an offense under this section
is a:

(1) state jail felony if committed in a building other than a habitation; or

(2) felony of the second degree if committed in a habitation.

....

(d) An offense under this section is a felony of the first degree if:

(1) the premises are a habitation; and

(2) any party to the offense entered the habitation with intent to commit a
felony other than felony theft or committed or attempted to commit a felony other
than felony theft.

“Habitation” is defined in Texas Penal Code Annotated section 30.01(1) as “a structure or

vehicle that is adapted for the overnight accommodation of persons.” “Building” is defined

as “any enclosed structure intended for use or occupation as a habitation or for some purpose

of trade, manufacture, ornament, or use.” Tex. Penal Code Ann. § 30.01(2).

Below, Strong asked the circuit court to determine that the Texas burglary statute

was not sufficiently comparable to the Arkansas burglary statute for purposes of determining

whether he had committed two or more felonies involving violence. The circuit court

rejected Strong’s argument, reasoning as follows:

[T]he Texas statute of burglary of a habitation as set forth in VCTA penal
code section 30.01, subsection 1, which defines habitation to mean a structure or
vehicle that is adapted for the overnight accommodation of persons, and the VCTA
penal code section .02 provides that a person commits the offense of burglary of a
habitation if the person without the effective consent of the owner enters a habitation

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or a building or any portion of a building not then open to the public with intent to
commit a felony, theft, or an assault.

And the court concludes it is comparable to the Arkansas statute for residential
burglary, which is defined as unlawful entry into an occupiable structure for the
purpose of committing in the occupiable structure any offense punishable by
imprisonment.

The court notes that in Arkansas residential burglary is a Class B felony. In
Texas, burglary [of a] habitation is a . . . felony of the first degree if the premises are
a habitation, and that, the court concludes, makes the two statutes comparable.

On appeal, Strong argues that the two statutory definitions of burglary are not

comparable because the Texas burglary statute “has a broader ambit” than Arkansas’s

definition of residential burglary. He contends that Texas’s statutory definition of burglary

comprises conduct that in Arkansas would be either residential burglary or commercial

burglary; therefore, because commercial burglary is not a felony involving violence for

purposes of section 5-4-501(d)(2)(A), the statutes are not sufficiently comparable.

The State responds that the statutes are, in fact, comparable because a “habitation”

in Texas is the equivalent of a “residential occupiable structure” in Arkansas, and both the

Texas and Arkansas statutes require a person to enter or remain in such a place with the

intent to commit either an offense punishable by imprisonment (in Arkansas) or a felony (in

Texas). The State further notes that in both Arkansas and Texas, the burglary of a place that

is a residential occupiable structure or a habitation is a more serious criminal offense than

the burglary of a place that is not a residence or habitation.

Our review of the matter is limited to whether the circuit court abused its discretion

in finding the Texas burglary statute comparable to the Arkansas burglary statute. A court

commits an abuse of discretion when it acts thoughtlessly, improvidently, or without due

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consideration. Jefferson Hosp. Ass’n v. Davis, 2020 Ark. App. 562, at 10, 615 S.W.3d 400,

406. In addition, if a circuit court commits an error of law, that, in and of itself, can also

constitute an abuse of discretion. Marks v. Saville, 2017 Ark. App. 668, at 6, 550 S.W.3d 1,

5.

Our research of Arkansas caselaw has revealed no case specifically describing or

defining what makes a statute from a foreign jurisdiction “comparable” to an Arkansas

statute for purposes of our habitual-offender-sentencing statute. 3 The Oxford English

Dictionary, however, defines “comparable” as meaning “able to be compared, capable of

comparison.” OED Online, Oxford University Press, March 2021 (accessed Mar. 29, 2021).

Similarly, Merriam-Webster defines it as meaning “capable of or suitable for comparison” or

as having an “identity of features.” Merriam Webster’s Collegiate Dictionary (10th ed.). The

circuit court here essentially placed the Arkansas statute side by side with the Texas statute

and determined that the two are of such similarity in their definitions and prohibited

conduct that they are “comparable” under section 5-4-501(d)(2)(B). In so doing, the circuit

court did not act thoughtlessly, improvidently, or without due consideration. We cannot

conclude that the court’s analysis constituted an abuse of discretion, and we therefore affirm.

Affirmed.

3
We note that other jurisdictions have adopted different approaches for analyzing the
comparability of statutes. See, e.g., Sambou v. State, 854 S.E.2d 392, 400 (Ga. Ct. App. Feb.
16, 2021); State v. Cribbs, 10 Wash. App. 2d 1030 (2019) (unpublished). Neither Strong nor
the State, however, has expressly asked this court to adopt any particular standard or
approach for determining whether the Arkansas burglary statute and the Texas burglary
statute are sufficiently comparable, and we decline to do so at this juncture.

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VIRDEN and GLADWIN, JJ., agree.

William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender,

for appellant.

Leslie Rutledge, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.

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