APPEAL FROM ORDER DISMISSING A PRO SE PETITION FOR JUDICIAL
REVIEW JEFFERSON COUNTY CIRCUIT COURT [No. 35CV-16-316 ]
HONORABLE, JUDGE JODI RAINES DENNIS
a pro se appeal from the dismissal of a petition for judicial
review that was filed pursuant to the Administrative
Procedure Act-Arkansas Code Annotated sections 25-15-212 -
219 (Repl. 2014). Appellant Cody Ward, pleaded guilty to one
count of manslaughter and is incarcerated in the Arkansas
Department of Correction (ADC) pursuant to a sentencing order
entered by the Mississippi County Circuit Court on March 5,
2013. The order reflected a sentence of 240 months'
imprisonment for the crime of manslaughter and the imposition
of a consecutive firearm enhancement of 120 months'
imprisonment pursuant to Arkansas Code Annotated section
16-90-120 (Repl. 2006). The sentencing order further
reflected that the crime had been committed on June 18, 2012,
that Ward had a "0" criminal history score, and
that Ward had not been sentenced as a habitual offender. The
second page of the March 5, 2013 sentencing order reflected
that the total term to be served "for all offenses"
was 240 months' imprisonment.
initially calculated Ward's term of imprisonment to total
an aggregate term of 240 months' imprisonment. However,
Ward's time computation card was changed by the ADC on
July 14, 2015, to reflect an increase in the time to be
served from an aggregate term of 240 months' imprisonment
to a term of 360 months' imprisonment. The ADC's
recalculation of Ward's sentence moved his parole date
from March 6, 2016, to November 5, 2017.
response to the recalculation of his sentence, Ward filed a
grievance and alleged that he was a first-time offender that
had been convicted of a Class C felony offense which carried
a maximum penalty of 120 months' imprisonment; that the
enhancement of an additional 120 months' imprisonment was
included in the total sentence of 240 months'
imprisonment; and that the ADC had misinterpreted the
sentencing order and had illegally increased his sentence for
manslaughter by 120 months. Due to the concern that Ward has
been serving time under an illegal sentence, we order
supplemental briefing on this issue.
did not adjudicate Ward's grievance and summarily denied
it based on the calculation of its records clerk who had
determined that his 240-month sentence had been enhanced by a
consecutive term of 120 months' imprisonment. The final
agency decision was entered on November 24, 2015. The record
is not clear on when Ward was given notice of the final
decision, but Ward subsequently sent a petition for judicial
review in advance of the expiration of the 30-day time frame
to file such a petition.
response to the petition for judicial review, the ADC filed a
motion to dismiss and argued that, under this court's
holding in Fatpipe Inc. v. State, 2012 Ark. 248, 410
S.W.3d 574, its decision was not one that was subject to
judicial review. The ADC also alleged that the Mississippi
County Circuit Court had entered an amended sentencing order
on August 25, 2014, which amended the aggregate sentence to
360 months' imprisonment. However, the ADC did not attach
the amended order to its motion to dismiss and the only order
that was made part of this record before this court was the
original sentencing order entered on March 5, 2013. The
circuit court granted the ADC's motion.
complaint is dismissed on a question of law, this court
conducts a de novo review. Renfro v. Smith, 2013
Ark. 40, at 2 (per curiam). The administration of prisons has
generally been held to be beyond the province of the courts.
Clinton v. Bonds, 306 Ark. 554, 557-58, 816 S.W.2d
169, 171-72 (1991). However, an exception to the courts'
reticence to entertain prisoner's administrative
complaints occurs when the petitioner asserts an infringement
on constitutional rights. Id. When an inmate alleges
facts sufficient to raise a liberty interest, the ADC's
actions are subject to judicial review. Munson v.
Arkansas Department of Correction, 375 Ark. 549, 553,
294 S.W.3d 409, 411 (2009)(per curiam). The unlawful
confinement of an individual under a sentence longer than
that permitted by statute constitutes a denial of liberty
without due process of law. Renshaw v. Norris, 337
Ark. 494, 497-98, 989 S.W.2d 515, 517 (1999). Ward has
alleged sufficient facts establishing a constitutionally
protected liberty interest.
ordered the state to supplement the record with the amended
sentencing order. The sentence clearly exceeds the maximum
penalty for the crime. Manslaughter is a Class C felony. Ark.
Code Ann. § 5-4-104(c) (Repl. 2006). A Class C felony
carries a maximum penalty of 10 years' or 120 months'
imprisonment. Ark. Code Ann. § 5-4-401(a)(4) (Repl.
2006). As stated above, there is no indication on the face of
the order that Ward had been sentenced as an habitual
response to Ward's grievance, the ADC did not consider
Ward's allegation that a sentence of 240 months'
imprisonment exceeds the statutory maximum for manslaughter.
This court has found that the ADC has a duty to execute
sentences in compliance with the law. Kelley v.
Norris, 2012 Ark. 86, at 3 (citing Kelley v.
Washington, 311 Ark. 73, 843 S.W.2d 797 (1992));
Woods v. Lockhart, 292 Ark. 37, 727 S.W.2d 849
(1987) (petitions for declaratory relief and for a writ of
mandamus are appropriate where persons incarcerated have
sought to compel the ADC to perform its duty with respect to
the asserted terms of incarceration).
stated above, the ADC argued below and argues on appeal that
judicial review of the ADC's actions are circumscribed by
the Administrative Procedure Act (APA) which limits judicial
review to agency adjudications. See Ark Code Ann.
§ 25-15-212. It is true that this court has held that
the right to judicial review under the APA is limited to
cases where the agency acted in a quasi-judicial manner by
conducting a full adjudication of the issue.
Fatpipe, 2012 Ark. 248, 410 S.W.3d 574. We have also
explained that where there has not been an adjudication
before the administrative agency, the circuit court does not
have jurisdiction for review. Walker v. Arkansas State
Board of Education, 2010 Ark. 277, 365 S.W.3d 899.
However, if the Constitution requires due process before an
agency can abridge a liberty interest by extending the
duration of an inmate's sentence, then the fact that the
agency failed to conduct an adjudication is in itself an
issue that is subject to judicial review. Clinton,
306 Ark. at 558, 816 S.W.2d at 172. Thus, the absence of an
adjudication is irrelevant to this court's authority to
review this matter, because such a conclusion would compound
a denial of due process.
issue of the illegality of a sentence may be raised at any
time, because the unlawful confinement of an individual under
a sentence longer than that permitted by statute constitutes
a denial of liberty without due process. Renshaw,
337 Ark. 497-98, 989 S.W.2d 517. Because the imposition of an
illegal sentence is viewed as a violation of basic
constitutional rights, this court has consistently viewed the
issue as being an issue of subject-matter jurisdiction, in
that it cannot be waived by the parties and may be addressed
for the first time on appeal. State v. Webb, 373
Ark. 65, 69, 281 S.W.3d 273, 276 (2008). Sentencing in
Arkansas is entirely a matter of statute. Esry v.
State, 2014 Ark. 539, at 3-4, 453 S.W.3d 144, 146-47
(per curiam). No sentence shall be imposed other than as
prescribed by statute. Id. A void or illegal
sentence is one that is illegal on its face. Id. A
sentence is illegal on its face when it exceeds the statutory
maximum for the offense for which the defendant was
record before this court contains the sentencing order
entered on March 5, 2013, and has since been supplemented to
include the amended order entered on August 25, 2014. While
contending that the amended order justified its action, the
ADC failed to explain the basis for increasing the total
sentence from 240 months' imprisonment to 360 months'
imprisonment and also failed to explain how the increase
represented a valid modification of the original order
occurring over one year after that order had been entered and
placed into execution. See Vera v. State, 2016 Ark.