MOTION FOR EXTENSION OF BRIEF TIME [MILLER COUNTY CIRCUIT
COURT, NO. 46CR-10-97]
DISMISSED; MOTION MOOT.
2010, appellant James Ray Thompson was found guilty by a jury
of two counts of rape and sentenced to a term of 120
months' imprisonment on each count. The terms were
ordered to be served consecutively. The Arkansas Court of
Appeals affirmed. Thompson v. State, 2011 Ark.App.
subsequently filed in the trial court a timely, verified
petition for postconviction relief under Arkansas Rule of
Criminal Procedure 37.1 (2010) and a memorandum of law in
support of the petition. The trial court appeared to treat
the two pleadings as separate petitions under the rule and
denied the relief sought. We affirmed. Thompson v.
State, 2013 Ark. 179 (per curiam).
8, 2016, Thompson filed in the trial court a pro se petition
to correct an illegal sentence pursuant to Arkansas Code
Annotated section 16-90-111 (Repl. 2006). There is a
provision in section 16-90-111 that allows the trial court to
correct an illegal sentence at any time because a claim that
a sentence is illegal presents an issue of subject- matter
jurisdiction. Williams v. State, 2016 Ark. 16, at 2
(per curiam). While the time limitations on filing a petition
under section 16-90-111(a)(b)(1) on the grounds that the
sentence was imposed in an illegal manner were superseded by
Arkansas Rule of Criminal Procedure 37.2(c) (2015), the
portion of section 16-90-111 that provides a means to
challenge a sentence at any time on the ground that the
sentence is illegal on its face remains in effect.
Halfacre v. State, 2015 Ark. 105, 460 S.W.3d 282
(per curiam). For that reason, the trial court had authority
to grant relief under the statute if the sentences imposed on
Thompson had indeed been illegal. Id.; see also
Hill v. State, 2013 Ark. 29 (per curiam).
trial court denied Thompson's petition, and he has lodged
an appeal in this court. Now before us is Thompson's
motion for extension of time to file his brief-in-chief. As
it is clear from the record that Thompson could not prevail
on appeal, the appeal is dismissed, and the motion is moot.
An appeal from an order that denied a petition for
postconviction relief, including a petition under section
16-90-111, will not be permitted to go forward where it is
clear that there is no merit to the appeal. Burgie v.
State, 2016 Ark. 144, at 1-2 (per curiam), reh'g
denied (May 5, 2016); Perrian v. State, 2015
Ark. 424, at 2 (per curiam).
alleged the following grounds for his assertion that his
sentence was illegal: the jury instructions did not reflect
the offenses designated in the charging instrument; the jury
instructions permitted him to be convicted for the
"uncharged crime of rape by deviate sexual activity or
rape by sexual intercourse which were separate crimes, "
which constituted a denial of due process of law; he was
convicted of offenses not charged according to the law
existing at the time of his trial; the jury and judge did not
specify any one of the two means of committing rape; there
was "unexercised discretion without the element required
for oral sex penetration when the alleged victim is unable to
say it occurred"; the verdict must be set aside if the
jury was instructed that it could rely on any of two or more
independent grounds constituting the offense charged; the
trial court erred by ordering the sentences to be served
consecutively. The trial court considered the petition under
section 16-90-111 as a challenge to the sentence on the
ground that it was illegal and further noted, correctly, that
the petition, while styled as a petition under section
16-90-111, could be considered a subsequent petition under
held that a petition that states a claim for postconviction
relief cognizable under Rule 37.1 is governed by that rule
regardless of the label placed on it by a petitioner.
Perrian, 2015 Ark. 424, at 3. Rule 37.1(b) does not
allow for a subsequent petition unless the original pleading
was denied without prejudice to file a second petition.
Thompson had not been granted leave to proceed again with
claims cognizable under Rule 37.1. See Carter v.
State, 2010 Ark. 349, at 3-4 (per curiam). To the degree
that his petition could be said to raise grounds cognizable
under the Rule, he was not entitled to proceed again under
the Rule. Rule 37.2(b) provides that all grounds for relief
available to a petitioner under the Rule must be raised in
his or her original petition unless the original petition was
denied without prejudice to filing a second petition. If a
first petition under the Rule is denied without leave to
proceed with a second petition, a petitioner under the Rule
is barred from submitting a subsequent petition. Hinkston
v. State, 2016 Ark. 4, at 4 (per curiam).
respect to Thompson's claim that his sentence was illegal
on its face, a sentence is illegal on its face when it
exceeds the statutory maximum for the offense for which the
defendant was convicted. Bell v. State, 2015 Ark.
370, at 3 (per curiam); see also Halfacre, 2015 Ark.
105, 460 S.W.3d 282. Here, Thompson did not so much as
contend that the sentences imposed on him exceeded the
statutory maximum for the offense of rape. As a Class Y
felony, rape can be punished by life imprisonment. Ark. Code
Ann. §§ 5-14-103(c)(1) (Supp. 2009); 5-4-401(a)(1)
(Repl. 2006). Thompson received the minimum term of
imprisonment for each of the two counts of rape. If a
sentence is within the limits set by statute, it is legal.
Gilliland v. State, 2014 Ark. 149, at 4 (per
held that the subject-matter jurisdiction of the trial court
is not implicated when the sufficiency of the felony
information is questioned. Sawyer v. State, 327 Ark.
421, 938 S.W.2d 843 (1997) (denying habeas corpus relief on
an assertion of lack of jurisdiction where petitioner claimed
that information charging him with rape was insufficient);
see also Abernathy v. Norris, 2011 Ark. 335, at 3-4
(per curiam). Allegations of defective jury instructions are
allegations of trial error and should be raised at trial.
Craig v. Hobbs, 2012 Ark. 218, at 3 (per curiam).
Mere trial error does not deprive a court of jurisdiction to
enter a legal judgment. Willis v. Hobbs, 2011 Ark.
509, at 2 (per curiam). Assertions of constitutional error
are not within the purview of section 16-90-111. Atkins
v. State, 2014 Ark. 393, at 3, 441 S.W.3d 19, 21 (per
allegations of error advanced by Thompson in his petition did
not allege an illegal sentence of the type that is
jurisdictional in nature; rather, the grounds for relief were
of the type that should have been raised at trial, on appeal,
or, to the extent that the claims were cognizable as grounds
for relief under Rule 37.1, in his 2012 petition for
postconviction relief under Rule 37.1. See Stanley v.
State, 2013 Ark. 483 (per curiam).
court's decision to deny relief under section 16-90-111
will not be overturned unless that decision is clearly
erroneous. Gilliland, 2014 Ark. 149, at 1. The trial
court's decision in this case was not clearly erroneous
because Thompson did not meet his burden of demonstrating in
his petition that the sentence imposed on him in the ...