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Cason v. State

Supreme Court of Arkansas

November 10, 2016

JAMES C. CASON APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         PRO SE APPEAL FROM THE MILLER COUNTY CIRCUIT COURT; MOTION TO EXPEDITE [NO. 46CR-91-59], HONORABLE KIRK JOHNSON, JUDGE.

         REVERSED AND REMANDED; MOTION TO EXPEDITE DENIED.

          James C. Cason, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., for appellee

          PER CURIAM.

         On April 4, 1991, appellant James C. Cason pleaded guilty to aggravated robbery; burglary; felon in possession of firearm; theft of property; manufacture, delivery, or possession of a controlled substance; and fraud/drug paraphernalia for which he was sentenced to an aggregate term of fifty years' imprisonment. On November 10, 2015, Cason filed a motion to correct time spent in custody pursuant to Arkansas Code Annotated section 5-4-404 (Repl. 2013), claiming entitlement to credit for ninety days of pretrial detention. On December 1, 2015, the trial court denied the motion, finding that his request for jail-time credit against his sentence was a request for modification of a sentence imposed in an illegal manner; as such, Cason had failed to timely seek postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (1995). Cason now appeals the denial of relief. Cason has also filed a motion to expedite the appeal. We reverse and remand and deny the motion to expedite.

         In his motion to expedite, Cason only claims that every day spent incarcerated exceeds the amount of time he should be required to serve. He has failed to state claims in his motion to expedite, which was filed after the case had been fully briefed, that would sufficiently demonstrate an unreasonable delay in the progress of his appeal or establish good cause for the motion to be heard by this court before other postconviction matters that are pending. See Hill v. State, 2014 Ark. 57 (per curiam). Cason's motion to expedite is denied.

         On appeal, as he did below, Cason contends that he is entitled to credit for time in custody that resulted in a sentence of imprisonment, citing Arkansas Code Annotated section 5-4-404. He notes that the circuit court found that his petition sought a modification of a sentence imposed in an illegal manner and denied him relief pursuant to Rule 37. Additionally, the circuit court discussed a "true clerical error, " which could be corrected nunc pro tunc to make "the record speak the truth, but not to make it speak what it did not speak but ought to have spoken." Cason argues that, although the circuit court stated that the circuit court's docket did not reflect that jail-time credit was to be granted, the docket sheet did reflect a credit of ninety days at the time of the plea. Cason contends the record clearly speaks that he was to be given credit for ninety days in the county jail.

         The State counters that Cason's assertion of ninety days' credit is incorrect and that the period from January 11, 1991, to April 4, 1991, is only eighty-four days. Nevertheless, Cason's request for jail-time credit is nothing more than a request for modification of a sentence imposed in an illegal manner-a claim that should have been raised pursuant to Rule 37.1, and Cason's attempt to raise the claim after twenty-four years was untimely. Although the State admits the docket reflects the ninety days' credit, it contends there is no need to address the issue of correcting the order nunc pro tunc because the "fact is irrelevant in light of the trial court's lack of jurisdiction."

         We agree with the circuit court that it could not modify the sentence pursuant to Arkansas Code Annotated section 5-4-404 because Cason's request was untimely. Arkansas Code Annotated section 5-4-404 states that if a defendant is "held in custody for conduct that results in a sentence to imprisonment or confinement the court shall credit the time spent in custody against the sentence." Cason's request for jail-time credit-credit that he contends is missing from the face of the judgment-and-commitment order-is a challenge that his sentence is illegal or imposed in an illegal manner. A void or illegal sentence is one that is illegal on its face. Barber v. State, 2016 Ark. 54, at 10, 482 S.W.3d 314, 322 (per curiam). A sentence is illegal on its face when it exceeds the statutory maximum for the offense for which the defendant was convicted. Id. If a sentence is within the limits set by statute, it is legal. Id. Cason does not dispute that his sentence does not exceed the statutory maximum. See Delph v. State, 300 Ark. 492, 780 S.W.2d 527 (1989).

         Notwithstanding Cason's claims regarding his entitlement to ninety days of jail-time credit, this court has previously held that a request for jail-time credit is a request for modification of a sentence imposed in an illegal manner. Cooley v. State, 322 Ark. 348, 350, 909 S.W.2d 312, 313 (1995). A claim that a sentence was imposed in an illegal manner must be raised in a petition filed with the circuit court under Rule 37.l. Id.; see also Perez v. State, 2015 Ark. 120 (per curiam). Likewise, this court has made clear that, regardless of its label, a pleading that mounts a collateral attack on a judgment is governed by the provisions of our postconviction rule. Green v. State, 2016 Ark. 216, 492 S.W.3d 75 (per curiam).

         Cason pleaded guilty on April 4, 1991, and filed his motion to correct time spent in custody on November 10, 2015. Under Arkansas Code Annotated section 5-4-404, a petition claiming relief under this rule must be filed in the appropriate court within ninety days of the date of entry of judgment on a plea of guilty, or, if the judgment was not entered of record within ten days of the date sentence was pronounced, a petition must be filed within ninety days of the date sentence was pronounced.[1] See Ark. R. Crim. P. 37.2(c) (1991). Clearly, seeking Rule 37.1 relief more than twenty-four years after sentence was pronounced is untimely. Cf. Cooley, 322 Ark. 348, 909 S.W.2d 312 (Cooley raised a section 5-4-404 claim on direct appeal, meaning he was not without a remedy because he could seek postconviction relief after his appeal.). Therefore, Cason is not entitled to relief under section 5-4-404.

         Nevertheless, we reverse and remand the case for the trial court to determine whether Cason is entitled to relief pursuant to Arkansas Rule of Civil Procedure 60(b), which permits correction of an error by nunc pro tunc order. Pursuant to Rule 60(b), a trial court may at any time correct clerical mistakes in judgments, decrees, orders, or other parts of the record and errors therein arising from oversight or omission. A true clerical error is "essentially one that arises not from an exercise of the court's judicial discretion but from a mistake on the part of its officers (or perhaps someone else)." Francis v. Protective Life Ins. Co., 371 Ark. 285, 293, 265 S.W.3d 117, 123 (2007) (citing Luckes v. Luckes, 262 Ark. 770, 772, 561 S.W.2d 300, 302 (1978)). Rule 60(b) has been applied in criminal cases "where we recognized a court's power to correct a judgment nunc pro tunc to make it speak to the truth." Bates v. State, 2009 Ark. 226 (per curiam).

         A circuit court's power to correct mistakes or errors is to make "the record speak the truth, but not to make it speak what it did not speak but ought to have spoken." Lord v. Mazzanti, 339 Ark. 25, 29, 2 S.W.3d 76, 79 (1999). A nunc pro tunc order may be entered to correct a misprision of the clerk, but the circuit court cannot change an earlier record to correct something that should have been done but was not. Griggs v. Cook, 315 Ark. 74, 78, 864 S.W.2d 832, 834 (1993) (citing Bradley v. French, 300 Ark. 64, 776 S.W.2d 355 (1989)). A circuit court may correct a mere clerical error in a judgment at any time; however, a motion to correct a judgment that is based on a substantive claim falls within the purview of Rule 37.1, not Rule 60. See Samples v. State, 2012 Ark. 146, at 2 (per curiam) (Appellant's motion did not assert a mere clerical error, but instead asserted that the date reflected in the judgment did not conform with the plea agreement which was a substantive claim.); Grissom v. State, 2009 Ark. 557, at 2-3 (per curiam) (An amended judgment entered nunc pro tunc to correct a clerical oversight because the judgment did not reflect that the appellant was sentenced as a habitual offender was a proper use of nunc pro tunc order.); McCuen v. State, 338 Ark. 631, 634-35, 999 S.W.2d 682, 684 (1999) (When the trial judge in open court sentenced McCuen to seventeen years in prison and a $30, 000 fine but the fine was left off the judgment and later added by nunc pro tunc ...


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