APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT. NO. 30CR-07-102. HONORABLE CHRIS E WILLIAMS, JUDGE.
Marcus Terrell Atkins, Pro se, Appellant.
Dustin McDaniel, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.
In 2007, appellant Marcus Terrell Atkins was found guilty by a jury of first-degree battery, kidnapping, being a felon in possession of a firearm, and use of a firearm in commission of a felony. An aggregate sentence of 480 months' imprisonment was imposed. The Arkansas Court of Appeals affirmed. Watkins v. State, 2009 Ark.App. 124, 302 S.W.3d 635.
Subsequently, appellant timely filed in the trial court a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2007). The petition was denied. No appeal was taken, and this court ultimately granted leave for appellant to proceed with a belated appeal from the order. Atkins v. State, 2010 Ark. 392 (per curiam). On appeal, this court affirmed the order of the trial court. Atkins v. State, 2011 Ark. 398 (per curiam).
In 2012, appellant filed in the trial court a pro se petition to correct an illegal sentence pursuant to Arkansas Code Annotated section 16-90-111 (Repl. 2006), alleging that the trial court erred by sentencing him, itself, to fifteen years' imprisonment for commission of a felony with a firearm pursuant to Arkansas Code Annotated section 16-90-120 (Repl. 2006) rather than allowing the jury to determine if the sentence should be imposed. Appellant further alleged that his attorney was ineffective for failing to object to the court's action. He sought to have the fifteen-year sentence vacated on the ground that it was illegal. The trial court dismissed the petition, and appellant brings this appeal.
This court has held that it will reverse the circuit court's decision granting or denying postconviction relief only when that decision is clearly erroneous. Paige v. State, 2013 Ark. 432 (per curiam); Pankau v. State, 2013 Ark. 162. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. We find no error and affirm the order.
First, appellant raised the claim of ineffective assistance of counsel concerning the trial court's decision not to submit the sentencing issue to the jury in his Rule 37.1 petition. On appeal from the Rule 37.1 order, we held that appellant had not demonstrated that his attorney was remiss, noting that one of appellant's codefendants, Kyron Watkins, had raised the same issue in his Rule 37.1 petition and we had affirmed the order denying relief in Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam). Atkins, 2011 Ark. 398. Moreover, even if the issue had not already been raised under Rule 37.1, section 16-90-111 does not provide a means to mount a collateral challenge to a judgment on the ground of ineffective assistance of counsel. Murphy v. State, 2013 Ark. 243 (per curiam).
With respect to appellant's assertion that the trial court erred in not submitting the sentencing issue to the jury, claims of mere trial error are not within the purview of section 16-90-111 inasmuch as the statute does not provide a means to address trial error. See Gilliland v. State, 2014 Ark. 149 (per curiam) (Assertions of constitutional error were not cognizable under section 16-90-111.). Trial error is a matter to be addressed during trial and on the record on direct appeal from the judgment. Id.; Ybarra v. State, 2013 Ark. 423 (per curiam).
As to the claim that the sentence was illegal, a claim that a sentence is illegal presents an issue of subject-matter jurisdiction that can be addressed at any time. Hill v. State, 2013 Ark. 291 (per curiam); Skinner v. Hobbs, 2011 Ark. 383 (per curiam); see Culbertson v. State, 2012 Ark. 112 (per curiam). Arkansas Code Annotated section 16-90-111(a) provides authority to a trial court to correct an illegal sentence at any time. See Reeves v. State, 339 Ark. 304, 5 S.W.3d 41 (1999); Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515 (1999). For that reason, the trial court had ...