NO. 40CV-14-4. HONORABLE JODI RAINES DENNIS, JUDGE.
Anthony White, pro se appellant.
Dustin McDaniel, Att'y Gen., by: Nicana C. Sherman, Ass't Att'y Gen., for appellee.
PRO SE APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT
In 2014, appellant Anthony White filed a petition for writ of habeas corpus in the circuit court of the county where he was incarcerated. In the petition, appellant challenged a 2006 judgment that reflected his jury convictions for possession of cocaine, simultaneous possession of drugs and firearms, and possession of a firearm by a felon. The judgment also reflected that the jury sentenced appellant as a habitual offender to consecutive sentences of 240 months' imprisonment, 720 months' imprisonment, and 360 months' imprisonment, respectively, for an aggregate sentence of 1320 months' imprisonment in the Arkansas Department of Correction. Appellant asserted two grounds for the writ that were based on allegations of double-jeopardy violations resulting from the convictions for possession of cocaine and simultaneous possession of drugs and firearms. The circuit court found that the claims were not cognizable in a petition for the writ and dismissed the petition. This appeal followed.
A circuit court's denial of habeas relief will not be reversed unless the court's findings are clearly erroneous. Henderson v. State, 2014 Ark. 180 (per curiam). On appeal, appellant combines and reasserts his two arguments for double-jeopardy violations and contends that the circuit court erred in denying relief on the claims. We hold that the circuit court did not err in denying relief and affirm.
Under our statute, a petitioner for the writ who does not allege his actual innocence and proceed under Act 1780 of 2001 Acts of Arkansas must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he is illegally detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2006). The burden is on the petitioner in proceedings for a writ of habeas corpus to establish that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Arnett v. Hobbs, 2014 Ark. 540 (per curiam).
Some claims of double jeopardy are cognizable in a habeas proceeding. Murphy v (per curiam). But, where a double-jeopardy claim does not allege that, on the face of the commitment order, there was an illegal sentence imposed on a conviction, the claim does not implicate the jurisdiction of the court to hear the case, and the claim is not one cognizable in a habeas-corpus proceeding. Id. Appellant alleged an illegal sentence, but his claims nevertheless fail.
Appellant first alleged in his petition that the convictions for possession and simultaneous possession violated double jeopardy because the jury had acquitted him of possession with intent to deliver cocaine when it returned the conviction on the lesser-included offense of possession of cocaine. He contended that the possession-with-intent-to-deliver conviction was necessary as an underlying element of the simultaneous-possession charge, and he also asserted that the underlying felony must be a Class Y felony in order to support the Class Y simultaneous-possession charge. He further contended that the jury could not, after it acquitted him on the possession-with-intent-to-deliver charge, convict him of the simultaneous-possession charge based on possession of the same drugs. In his second ground for the writ, appellant also alleged that the simultaneous-possession conviction could not stand because it contained all of the elements in the simple-possession conviction.
Appellant's first claim for relief is at odds with the language of the statute defining the crime of simultaneous possession as in effect when he committed the crime. Under our criminal code, the governing statute is that which is in effect at the time the crime was committed. Cody v. State, 326 Ark. 85, 929 S.W.2d 159 (1996). The judgment reflects that the offense date was September 4, 2005, so the applicable version of the simultaneous-possession statute was Arkansas Code Annotated section 5-74-106 (Repl. 2005), which states that " no person shall unlawfully commit a felony violation of § 5-64-401" while in possession of a firearm. Ark. Code Ann. § 5-74-106(a). There was no restriction on the level of the offense under section 5-64-401 noted in the statute. The statute also makes no distinction between those committing a violation of section 5-64-401(c) for simple possession of a controlled substance and those committing a violation of section 5-64-401(a) for possession with intent to deliver a controlled substance.
The first rule of statutory construction is to construe a statute just as it reads, giving the words their ordinary and usually accepted meaning. State v. Thomas, 2014 Ark. 362, 439 S.W.3d 690. We construe criminal statutes strictly, resolving any doubts in favor of the defendant. Hartv. State, 2014 Ark. 250. We also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. Id. If the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Id. The language of section 5-74-106 concerning appellant's first argument is plain and ...