JEFFERY D. MORGAN PETITIONER
STATE OF ARKANSAS RESPONDENT
MOTION FOR LEAVE TO PROCEED WITH A BELATED APPEAL [LEE COUNTY
CIRCUIT COURT, NO. 39CV-16-35] HONORABLE KATHLEEN BELL, JUDGE
Jeffery D. Morgan, who is incarcerated in a facility located
in Lee County, filed a petition for writ of habeas corpus in
the Lee County Circuit Court. On May 23, 2016, the circuit
court entered an order that denied the petition. On June 13,
2016, Morgan filed a motion requesting an extension of time
in which to file a "Petition for Reconsideration, "
and on July 7, 2016, Morgan filed a motion for
reconsideration and a motion for extension of time to file a
notice of appeal. The circuit court entered orders denying
the motion for reconsideration and the motion for extension
of time on August 8, 2016, and, on the same date, Morgan
filed his notice of appeal of the May 23, 2016 order. When
the record was tendered to this court, our clerk declined to
lodge it because the notice of appeal was not timely. Morgan
filed the instant motion requesting permission to proceed
with a belated appeal of that order. We dismiss the motion
because it is clear that the appeal is without merit.
Arkansas Rule of Appellate Procedure-Civil 4(a) (2016),
Morgan was required to file his notice of appeal within
thirty days of the date of the entry of the order to be
appealed unless an extension of time was granted in accord
with the rule. This thirty-day period expired on Wednesday,
June 22, 2016. Morgan appears to contend that, because he
filed a motion for reconsideration and a motion for extension
of time within thirty days after the order denying the habeas
petition had been entered and no order was entered ruling on
those two motions within that same thirty days, his notice of
appeal was timely.
petitioner has the right to appeal an adverse ruling on a
petition for postconviction relief, including a petition for
writ of habeas corpus. Halfacre v. Kelley, 2016 Ark.
71 (per curiam). Yet an appeal of the denial of
postconviction relief, including an appeal from an order that
denied a petition for writ of habeas corpus, will not be
permitted to go forward where the appeal is without merit.
Early v. Hobbs, 2015 Ark 313, 467 S.W.3d 150 (per
curiam). We need not consider Morgan's claims concerning
the timeliness of the notice of appeal because the claims
raised in his habeas petition did not state a ground for
issuance of the writ. Henington v. State, 2016 Ark.
405, 503 S.W.3d 751 (per curiam).
was convicted of kidnapping and second-degree battery, and he
was sentenced as a habitual offender to concurrent terms of
life and 180 months' imprisonment respectively. This
court affirmed. Morgan v. State, 359 Ark. 168, 195
S.W.3d 889 (2004). In his habeas petition, Morgan raised five
claims, all concerning his contention that his sentences were
inappropriately enhanced under the applicable statute,
specifically Arkansas Code Annotated section 5-4-501(b)
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, a petitioner for
the writ who does not allege his actual innocence and proceed
under Act 1780 of 2001 Acts of Arkansas must 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). Unless the petitioner in proceedings for a writ of
habeas corpus can show that the trial court lacked
jurisdiction or that the commitment was invalid on its face,
there is no basis for a finding that a writ of habeas corpus
should issue. Fields v. Hobbs, 2013 Ark. 416.
did not invoke Act 1780 in his habeas petition. He alleged that
section 5-4-501(b) is unconstitutionally vague in that it
fails to adequately define a violent crime, that out-of-state
convictions were impermissibly used to enhance his sentences,
that the judgment was facially invalid because the statute is
unconstitutionally vague in that it references section
5-4-501(d), that he was not given a hearing outside of the
jury's presence concerning which prior convictions
qualified as a crime of violence, and that one of the prior
convictions used to enhance his sentence was not a violent
crime as defined under section 5-4-501(c) or (d). None of
these claims established a factual basis to support
Morgan's allegations that the trial court lacked
jurisdiction or that the commitment was facially invalid.
corpus proceedings do not afford a prisoner an opportunity to
retry his case, and claims of trial error are not within the
purview of the remedy. Mackey v. Lockhart, 307 Ark.
321, 819 S.W.2d 702 (1991). To the extent that Morgan's
claims alleged that the proof used to establish his status as
a habitual offender was insufficient or that he was not
provided an adequate hearing, those claims were not
cognizable. Bunch v. Kelley, 2016 Ark. 58 (per
also alleged in his petition that his sentences were illegal
because of the enhancements, and a meritorious claim of an
illegal sentence does fall within the purview of the habeas
remedy. Jurisdiction is the power of the court to hear and
determine the subject matter in controversy. Baker v.
Norris, 369 Ark. 405, 255 S.W.3d 466 (2007). This court
views an allegation of a void or illegal sentence as being an
issue of subject-matter jurisdiction. Walden v.
State, 2014 Ark. 193, 433 S.W.3d 864. When a habeas
petition alleges an illegal sentence, we review the matter of
the trial court's subject-matter jurisdiction to enter
the sentence regardless of whether an objection was made to
the trial court. Taylor v. State, 354 Ark. 450, 125
S.W.3d 174 (2003). Indeed, detention for an illegal period of
time is precisely what a writ of habeas corpus is designed to
correct. Id. If the petitioner does not show that,
on the face of the commitment order, there was an illegal
sentence imposed, however, the petitioner's claim is not
one that implicates the jurisdiction of the court to hear the
case, and the claim is not one that is cognizable.
Fields, 2013 Ark. 416.
Arkansas, sentencing is entirely a matter of statute, and
this court has consistently held that sentencing shall not be
other than in accordance with the statute in effect at the
time of the commission of the crime. Philyaw, 2015
Ark. 465, 477 S.W.3d 503. Morgan's life sentence for
kidnapping fell within the statutory range for that
charge-which, as Morgan acknowledges, was a Y
felony-regardless of whether the sentence was enhanced.
Because the sentence fell within the sentencing range for the
charge, Morgan's argument that enhancement of the
sentence was illegal fails as to that charge. See Kelley
v. State, 2015 Ark. 486 (per curiam).
Morgan's remaining arguments that his sentence for
second-degree battery was illegal, this court has previously
considered and rejected the argument Morgan makes that the
habitual-offender statute contains a vague definition for a
"serious felony involving violence" because the
statute lists specific felonies. Wooten v. State,
2016 Ark. 376, 502 S.W.3d 503 (per curiam) (considering a
more recent version of the statute containing the same
language at issue).
Wooten, Morgan also alleged that the statute was
unconstitutionally applied because his prior convictions
included out-of-state felony convictions, and the statute did
not clearly define a "violent felony" with regard
to out-of-state felony convictions. But the definition of a
violent felony for an out-of-state conviction was not needed
in Morgan's case to determine that his sentence should be
sentence for second-degree battery was enhanced under section
5-4-501(b). That provision of the statute does refer to the
list of felonies in section 5-4-501(c) and (d) to set out the
criteria that must be met for an enhanced sentencing range in
section 5-4-501(b)(2), but the prior convictions that may be
used for enhancement under section (b) are four or more prior
felonies that are not enumerated in section