ROBERT J. MOTEN, APPELLANT
WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION, APPELLEE
FROM THE LINCOLN COUNTY CIRCUIT COURT. NO. 40CV-15-27.
HONORABLE JODI RAINES DENNIS, JUDGE.
J. Moten, Pro se, appellant.
Rutledge, Att'y Gen., by: Kristen C. Green, Ass't
Att'y Gen., for appellee.
2010, in a bench trial, appellant Robert J. Moten was found
guilty of first- and second-degree battery and sentenced to
an aggregate term of 264 months' imprisonment.
Moten's sole point on direct appeal was that he was
denied the right to a trial by jury. The Arkansas Court of
Appeals held that Moten had knowingly, intelligently, and
voluntarily waived that right and affirmed the judgment.
Moten v. State, 2011 Ark.App. 417.
who is incarcerated at a unit of the Arkansas Department of
Correction in Lincoln County, filed a petition for a writ of
habeas corpus and for declaratory judgment in the Lincoln
County Circuit Court on March 31, 2015. The petition was
dismissed with respect to the claims for declaratory judgment
and denied as to the claims for a writ of habeas corpus.
Moten brings this appeal.
does not raise any argument on appeal pertaining to the
dismissal of his petition for declaratory judgment. Issues
raised in the petition below, but not raised in this appeal,
are considered abandoned. Sims v. State, 2015 Ark.
363, 472 S.W.3d 107.
circuit court's grant or denial of habeas relief will not
be reversed unless the court's findings are clearly
erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434
S.W.3d 364. A finding is clearly erroneous when, although
there is evidence to support it, the appellate court is left,
after reviewing the entire evidence, with the definite and
firm conviction that a mistake has been committed.
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. Fields v. Hobbs, 2013 Ark. 416.
argued in his habeas petition that the trial court lacked
jurisdiction in his case because he was not afforded a trial
by jury. In this appeal, his sole contention for reversal of
the circuit court's order is that the circuit court erred
in its decision that he did not establish that the trial
court was without jurisdiction.
2, Section 10 of the Arkansas Constitution recognizes the
right to trial by jury provided by the Sixth Amendment to the
United States Constitution, but it also directs that a jury
trial may be waived by the parties in the manner prescribed
by law. Johnson v. State, 314 Ark. 471, 868 S.W.2d
42 (1993). Here, the court of appeals noted in its decision
on direct appeal that Moten had waived his right to a jury
trial under Arkansas Rule of Criminal Procedure 31.2 (2015),
both in writing and through defense counsel on the record in
open court. The prosecutor assented to the waiver in
accordance with Arkansas Rule of Criminal Procedure 31.1
(2015), and the trial court assented to it. Moten,
2011 Ark.App. 417, at 6. The provisions allowing Moten to
trial by jury did not deprive the trial court of jurisdiction
over the person or the subject matter of the ...