FROM THE CHICOT COUNTY CIRCUIT COURT [NO. CV2016-9-3]
HONORABLE ROBERT BYNUM GIBSON, JUDGE
Lee Russell, pro se appellant.
Rutledge, Att'y Gen., by: Ashley Priest, Ass't
Att'y Gen., for appellee.
R. BAKER, Associate Justice
August 8, 2013, appellant Roy Lee Russell was found guilty by
a jury of battery in the second degree and being a felon in
possession of a firearm. He was sentenced as a habitual
offender to serve 180 months' imprisonment and 480
months' imprisonment, respectively, to be served
consecutively for a total of 660 months. On August 8, 2013,
the circuit court entered the sentencing order and stated
each offense and sentence. The order also stated that the
aggregate term of imprisonment to be served by Russell was
480 months, rather than the 660 months. On August 19, 2013,
the circuit court entered an amended sentencing order that
stated that a total sentence of 660 months' imprisonment
had been imposed. The Arkansas Court of Appeals affirmed the
judgment. Russell v. State, 2014 Ark.App. 357.
January 11, 2016, Russell, filed a pro se petition for writ
of habeas corpus alleging that he is being illegally held on
an invalid conviction. Russell alleged that his 2013
sentencing order is invalid on its face and the circuit court
lacked jurisdiction to enter the order. On January 7, 2016,
the circuit court denied Russell's petition on the ground
that Russell had not stated a ground for the writ. Russell
brings this appeal and contends that the circuit court erred
in denying his requested relief.
circuit court's decision on a petition for writ of habeas
corpus will be upheld unless it is clearly erroneous.
Hobbs v. Gordon, 2014 Ark. 225, at 5, 434 S.W.3d
364, 367. A decision 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 made. Id.
Further, a writ of habeas corpus is proper when a judgment of
conviction is invalid on its face or when a circuit court
lacks jurisdiction over the cause. Philyaw v.
Kelley, 2015 Ark. 465, 477 S.W.3d 503. 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). Unless the
petitioner in proceedings for a writ of habeas corpus can
show that the trial court lacked jurisdiction or that the
commitment was invalid on its face, there is no basis for a
finding that a writ of habeas corpus should issue. Fields
v. Hobbs, 2013 Ark. 416.
appeal, Russell contends that the circuit court erred in
denying his petition alleging that the amended order is
invalid on its face and the circuit court was without
jurisdiction to enter the order. Based on the record before
us, we do not find merit in Russell's argument.
where there was an obvious clerical error, a trial court has
jurisdiction to correct the clerical error to make the
judgment speak the truth and may enter a judgment nunc pro
tunc to correct an erroneous judgment. McCuen v.
State, 338 Ark. 631, 999 S.W.2d 682 (1999) (citing
Sherman v. State, 326 Ark. 153, 931 S.W.2d 417 (1996);
Clements v. State, 312 Ark. 528, 851 S.W.2d 422
(1993); Lovett v. State, 267 Ark. 912, 591 S.W.2d
683 (1979); Harrison v. State, 200 Ark. 257, 138
S.W.2d 785 (1940)); see also Green v. State, 2013
Ark. 497, 39, 430 S.W.3d 729, 753-54 (2013). Second, at
trial, in open court, Russell's sentence of 180
months' imprisonment and 480 months' imprisonment,
for a total of 660 months' imprisonment was pronounced.
Russell did not object to the sentence imposed.
the August 8, 2013 order correctly stated each offense and
sentence, but under the "TOTAL TIME TO BE SERVED FOR ALL
OFFENSES in months" erroneously listed the total as 480
months, rather than the aggregate 660 months. Also, like
McCuen, Russell's argument overlooks the fact that a few
days prior to the entry of the amended sentencing order, in
open court, the trial judge sentenced Russell to 660
aggregate months' imprisonment. This is precisely the
kind of clerical error meant to be corrected by a judgment
entered nunc pro tunc. See McCuen, 338 Ark. at 635,
999 S.W.2d at 684. Moreover, clerical errors do not prevent
enforcement of a judgment-and-commitment order. Burgie v.
Norris, 2010 Ark. 267 (per curiam). Finally, clerical
errors do not entitle a petitioner to relief in a
habeas-corpus proceeding. Reed v. Hobbs, 2012 Ark.
61 (per curiam).
here, the order contained a clerical error, was corrected and
is enforceable. Because Russell did not meet his burden of
establishing a ground for a writ of habeas corpus, we affirm