LEE CHARLES MILLSAP, JR. APPELLANT
WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEE
APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT [NO.
40CV-15-106] HONORABLE JODI RAINES DENNIS, JUDGE
Lee Charles Millsap, Jr., filed a pro se petition for writ of
habeas corpus in the circuit court of the county where he was
incarcerated. The circuit court dismissed the petition,
and Millsap lodged this appeal. On appeal, Millsap contends
that the circuit court erred in dismissing the petition
because it failed to grant relief on his claim in the habeas
petition that a judgment of commitment sentencing Millsap to
"life without parole" on a capital-murder charge
was facially invalid. We affirm the order dismissing the
1998, Millsap entered negotiated guilty pleas in the Pulaski
County Circuit Court to charges of capital murder,
first-degree terroristic threatening, and second-degree
battery. The judgment Millsap attached to the habeas petition
reflects that Millsap received a sentence of life without
parole on the capital-murder charge. Millsap also attached to
his petition a copy of the docket listing for the trial
court, which indicates that the death penalty was waived.
Millsap does not contest the judgment concerning the other
charges, but he contends, both in the petition and on appeal,
that the trial court did not have authority under the
applicable statutes to enter a sentence of life without
parole for the capital-murder charge.
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, unless a
petitioner for the writ alleges his actual innocence and
proceeds under Act 1780 of 2001 Acts of Arkansas, he is
required to 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). A petitioner in
proceedings for a writ of habeas corpus must show that the
trial court lacked jurisdiction or that the commitment was
invalid on its face, or there is no basis for a finding that
a writ of habeas corpus should issue. Fields v.
Hobbs, 2013 Ark. 416.
alleged that the judgment was illegal on its face, and he
contends that he has shown probable cause for a finding of
illegal detention because he has shown that the trial court
lost jurisdiction to impose the sentence when the State
waived the death penalty. Arkansas Code Annotated section
16-89-108(b) (Repl. 2005) states that, in those cases where
the death penalty has been waived, "punishment cannot be
fixed at more than life imprisonment." Millsap asserts
that the imposition of the sentence that he received, life
without parole, was barred by this statutory requirement.
Millsap contends that, because he can only be sentenced under
that statute to life, his conviction must be void. Millsap
alleges the sentence may not be reduced to a "life"
sentence because, under Arkansas Code Annotated section
5-10-101 (Repl. 1997), the only two possible sentences for a
conviction of capital murder are death or life imprisonment
without parole. Millsap argues that this conflict in
statutory intent must be resolved in his favor, and that the
sentence imposed was in excess of that permitted.
circuit court considering the habeas petition found that
Millsap's sentence was within the statutory range for
capital murder and that Millsap failed to demonstrate
probable cause for issuance of the writ. A 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.
Id. On appeal, however, we consider any statutory
interpretation de novo and give no deference to the circuit
court's interpretation. State v. Thomas, 2014
Ark. 362, 439 S.W.3d 690. In this case, the circuit
court's order was not clearly erroneous, and, following
clear precedent, its statutory interpretation was also
circuit court noted in its order, this court has considered
this issue and rejected Millsap's argument. In Butler
v. State, 261 Ark. 369, 549 S.W.2d 65 (1977), we noted
that the intermediate punishment of life imprisonment without
parole did not exist when the act codified by section
16-89-108 was passed. In construing any statute, we place it
beside other statutes relevant to the subject matter in
question and ascribe meaning and effect to be derived from
the whole. Thomas, 2014 Ark. 362, at 4, 439 S.W.3d
at 692. Statutes relating to the same subject must be
construed together and in harmony, if possible. Id.
true that penal statutes are to be strictly construed, and
all doubts are to be resolved in favor of the defendant.
State v. Colvin, 2013 Ark. 203, 427 S.W.3d 635. Even
a penal statute, however, must not be construed so strictly
as to defeat the obvious intent of the legislature.
Id. As we concluded in Butler, the two
statutes here can be read in harmony. The legislature's
intent in section 16-89-108(b) was clearly that, once waived,
the waiver could not be disregarded and the death penalty
imposed. It was not, as Millsap contends, the
legislature's intent to prohibit any imposition of the
only permissible alternative sentence under section 5-10-101,
life imprisonment without parole. Accordingly, the circuit
court did not err in declining to grant relief on the claim
in the habeas petition.
 As of the date of this opinion,
Millsap remains incarcerated in Lincoln ...