APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT. NO. 30CR-11-16. HONORABLE CHRIS E WILLIAMS, JUDGE.
AFFIRMED AND REMANDED WITH INSTRUCTIONS.
Matthew Esry, Pro se, appellant.
Dustin McDaniel, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.
On March 30, 2011, judgment was entered reflecting that appellant Matthew Esry had entered a plea of guilty to second-degree battery for which a sentence of 96 months' imprisonment was imposed. While appellant was informed at the plea hearing that the sentence would be enhanced based on his habitual-offender status, the judgment-and-commitment order does not reflect that he was sentenced as a habitual offender.
Appellant was charged by information alleging that he committed second-degree battery and asserting that he was a habitual offender based on prior convictions of criminal mischief and rape. The record reflects that, at the plea hearing on March 22, 2011, appellant was informed that he had been charged with second-degree battery as a habitual offender. He stated that he understood that the punishment range for second-degree battery is zero to six years, that the punishment would be enhanced by habitual-offender status based on two prior felony convictions, and that he was pleading to a sentence of eight years based on that enhancement. Thereafter, the trial court sentenced him at the hearing as a habitual offender to eight years' imprisonment. Appellant also signed a plea agreement filed on March 23, 2011, indicating the imposition of a sentence of eight years based on a guilty plea to second-degree battery and habitual-offender status. While the judgment-and-commitment order entered on March 30, 2011, reflects that appellant was sentenced to serve 96 months' imprisonment for second-degree battery, the order was not appropriately marked to indicate that appellant was sentenced as a habitual offender.
In December 2011, appellant filed a petition to correct an illegal sentence, alleging that the sentence imposed was outside the statutory range for second-degree battery. Following a hearing on June 26, 2012, the trial court denied and dismissed the petition based on its finding that, because the petition was untimely, it no longer had jurisdiction over the matter. The trial court found, however, that the eight-year sentence did exceed the presumptive sentence for second-degree battery.
In October 2012, appellant again filed a petition to correct an illegal sentence, repeating the allegation that the imposed sentence was outside the statutory range and raising the additional allegation that he had notified his attorney of this error within ninety days after his sentence was
imposed. In an order entered on February 5, 2013, the trial court " closed the case" and found it would not address the argument raised in the petition based on the doctrine of res judicata.
On August 16, 2013, appellant filed another petition to correct an illegal sentence, contending as he had previously that his sentence was outside the statutory range for second-degree battery. He alleged that, because the sentence was outside the range, it was illegal on its face. The trial court denied ...