Citing clerical error in sentencing order, state Supreme Court says killer of 72-year-old Wooster woman is eligible for parole

By Stephen Simpson
Arkansas Democrat Gazette

The Arkansas Supreme Court has requested a circuit court correct a "clerical error" that stated a Pine Bluff juvenile had been sentenced to life in prison without parole in the 2018 kidnapping and murder of a 72-year-old Wooster women.

Robert Smith III, 20, appealed to the high court an order from Faulkner County Circuit Court convicting him of capital murder, kidnapping, aggravated robbery, and theft of property and sentencing him to consecutive terms of life, 40 years, 40 years and 10 years, respectively.

Smith was arrested in 2018 in connection to the death of Elvia Fragstein, a 72-year-old woman who investigators believe was abducted from the Commons Shopping Center in Conway by Smith and his cousin Tacori Mackrell. Fragstein's body was later found in rural Jefferson County.

Smith argued five points of error or abuse in his request for reversal, including that his sentence of life without parole was illegal.

Chief Justice John Dan Kemp said because Smith received a life sentence, the court examined the record for all objections, motions and requests made by either party that were decided adversely to Smith.

"No prejudicial error has been found," he said, meaning none of the arguments would change the status of guilt in the case.

One argument Smith brought forth was that his sentence of life imprisonment without the possibility of parole for the capital murder conviction was illegal because Arkansas law doesn't allow a juvenile to be sentenced to life without parole for any homicide offense.

Arkansas law states that if a defendant was younger than 18 at the time capital murder was committed, life imprisonment comes with the possibility of parole after serving a minimum of 30 years in prison.

"Here, it is undisputed that Smith was sixteen years old at the time of the capital murder," Kemp said. "Thus, he was ineligible for a sentence of life without the possibility of parole."

Kemp said the notation of life without parole on Smith's sentencing order appears to be a clerical error because all parties agreed Smith would be eligible for parole on the capital murder conviction after 30 years.

"But clerical errors do not prevent enforcement of a judgment, and a circuit court can enter an order nunc pro tunc at any time to correct clerical errors in a judgment," Kemp said. "We therefore remand and instruct the circuit court to correct the sentencing order so that it accurately reflects that Smith was sentenced to 'Life' for capital murder, which in his case means that he is eligible for parole after thirty years."

Associate Justice Shawn Womack said he agreed to affirm Smith's conviction for capital murder, kidnapping and aggravated robbery, but found the need to remand the sentence error to circuit court to be unnecessary.

"To efficiently administer justice, this court may correct an illegal sentence, particularly when the illegality stems from an apparent clerical error in the sentencing order," he said. "Remanding is a needless waste of resources for both parties, the trial court, the clerks and other employees. The best disposition is to affirm Smith's sentence as modified: life imprisonment."

Fragstein's death drew statewide attention after her body was found by a farmer on a rural road near Pine Bluff. An autopsy revealed that Fragstein had suffered eight broken ribs, a fractured cervical vertebra and a crushed throat.

Senior deputy prosecutor John Hout told the jury during Mackrell's case that Mackrell and Smith went on the "hunt" for a victim and found Fragstein. Hout repeated the testimony of Stephen Erickson, deputy chief medical examiner at the state Crime Laboratory, who testified during the trial that Fragstein suffered a "multifactional, severe and prolonged assault."

The injuries were consistent with someone "stomping" the victim, and the crushed vertebrae in her neck was likely caused by someone using an external instrument, such as a tire iron, Erickson had said.

https://www.arkansasonline.com/news/...r-state/?crime