APPELLANT'S PETITION FOR WRIT OF MANDAMUS [FAULKNER
COUNTY CIRCUIT COURT, NOS. 23CR-14-791, 23CR-14-817]
HONORABLE CHARLES E. CLAWSON, JUDGE.
DISMISSED; PETITION MOOT.
April 11, 2016, judgment was entered in the Faulkner County
Circuit Court in case number 23CR-14-791 reflecting that
appellant Robert E. Henry had entered a plea of guilty to
possession of a controlled substance. Henry was sentenced as
a habitual offender to 144 months' imprisonment. On the
same date, Henry also entered a plea of guilty in case number
23CR-14-817 to delivery of a controlled substance for which
he was sentenced as a habitual offender to 144 months'
imprisonment. Imposition of a sentence of 96 months was
suspended in the case. The court ordered that the sentences
in the two cases would be served concurrently.
7, 2016, Henry filed in the trial court a pro se petition to
correct an illegal sentence pursuant to Arkansas Code
Annotated section 16-90-111 (Supp. 2015) that encompassed
both cases. 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 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manner were superseded by Arkansas Rule of Criminal Procedure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 sentence
imposed on Henry in either of the cases was indeed illegal on
its face. Id.; see also Hill v. State, 2013
Ark. 29 (per curiam).
trial court held a hearing on August 8, 2016. At that
hearing, Henry indicated that he did not wish to pursue the
petition to correct the sentences because he was satisfied
with the sentences once he understood that they would run
concurrently with each other and with the sentences imposed
in other judgments entered against him. On August 24, 2016,
the court entered its order granting Henry's request to
dismiss the petition. Henry had filed a pro se notice of
appeal on August 22, 2016, stating his intention to appeal to
this court from the decision of the court issued from the
bench on August 8, 2016. Henry has lodged the appeal in this
before us is Henry's petition for writ of mandamus in
which he seeks a writ compelling the trial court to correct
the order dismissing his petition to correct the sentences in
the cases. On January 5, 2016, we granted the appellee's
motion to supplement the record in this matter with a copy of
the amended felony information in in case number 23CR-14-817
that reflects that Henry was charged as a habitual offender
in the case.
is evident from the record that Henry could not prevail on
appeal, the appeal is dismissed, and the mandamus petition 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).
trial court at the August 8, 2016 hearing questioned Henry
about his decision not to proceed with the petition to
correct an illegal sentence that covered his two cases,
specifically asking, "[M]y understanding is you are
dismissing or dropping both those motions [sic] today."
Henry replied that the court's understanding was correct.
It is therefore not clear on what basis Henry has lodged this
appeal except for his assertion in the mandamus petition that
he did not make a formal motion to dismiss the section
16-90-111 petition. As the record clearly reflects that Henry
chose to abandon his claims under section 16-9-111, Henry
could not succeed if the appeal were allowed to proceed. For
that reason, there was no error, and the appeal is subject to
dismissed; petition moot.
 The judgments reflect pleas of guilty
in the two cases. At the hearing when the pleas were taken,
the trial court indicated that the pleas were pleas of nolo
contendere and informed Henry correctly that the pleas would
be treated just the same as pleas of guilty and that the
sentences would be the same for a plea of nolo contendere or
guilty. Trial courts are required to treat a plea of nolo
contendere the same as if it were a plea of guilty. See
Ashby v. State, 297 Ark. 315, 319, 761 S.W.2d 912, 914
(1988). The plea of nolo contendere to a charge in a criminal
case is an admission of guilt in the criminal case.
Seaton v. State, 324 Ark. 236, 237, 920 S.W.2d 13,
14 (1996) (per curiam) ...