FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO.
60CR-15-814] HONORABLE LEON JOHNSON, JUDGE
William R. Simpson, Jr., Public Defender, by: Clint Miller,
Deputy Public Defender, for appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
D. VAUGHT, Judge.
Tearbrey Anderson and Zayzhon Thompson appeal their
convictions by a Pulaski County Circuit Court of six felony
offenses and six counts of the
firearm enhancement codified in Arkansas Code Annotated
section 16-90-120 (Repl. 2011). On appeal, they raise only one argument
for reversal: that the firearm-enhancement statute is a
lesser-included offense of any crime for which use of a
firearm is an element, thereby making their sentences for
both the underlying felonies and the firearm enhancements
illegal. Because appellants admittedly failed to raise this
argument below, and because their sole point on appeal is
more accurately understood as a double-jeopardy challenge
than as a challenge to an illegal sentence, it is not
preserved for our review.
court views an issue of a void or an illegal sentence 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. Walden v. State, 2014 Ark.
193, at 3-4, 433 S.W.3d 864, 867 (citing State v.
Webb, 373 Ark. 65, 281 S.W.3d 273 (2008); Thomas v.
State, 349 Ark. 447, 79 S.W.3d 347 (2002); Bangs v.
State, 310 Ark. 235, 835 S.W.2d 294 (1992)). A sentence
is void or illegal when the circuit judge lacks the authority
to impose it. Walden, 2014 Ark. 193, at 3-4, 433
S.W.3d at 867 (citing Cross v. State, 2009 Ark. 597,
357 S.W.3d 895). In Cook v. State, we explained that
"an 'illegal sentence' means 'a sentence
illegal on its face.'" 46 Ark.App. 169, 173, 878
S.W.2d 765, 767 (1994) (citing Lovelace v. State,
301 Ark. 519, 785 S.W.2d 212 (1990)). A sentence is illegal
on its face when it exceeds the statutory maximum for the
offense for which the defendant was convicted. Akins v.
State, 2014 Ark. 393, at 4, 441 S.W.3d 19, 21. If a
sentence is within the limits set by statute, it is legal.
Grissom v. State, 2013 Ark. 417 (per curiam).
they admit that they never raised this issue below,
appellants argue that they should be permitted to raise, for
the first time on appeal, the contention that their
convictions for felonies involving the use or possession of a
firearm (aggravated burglary and aggravated robbery),
combined with the application of a firearm enhancement to
each of those counts, violates Arkansas Code Annotated
section 5-1-110 (Repl. 2013), which states that a defendant
cannot be convicted of both a criminal offense and a
lesser-included offense of that crime. Their argument fails
for two reasons. First, it is not an attack on an illegal
sentence but rather a double-jeopardy challenge, and
therefore it is not preserved for our review. Additionally,
this argument has already been directly addressed and
rejected. Scott v. State, 2011 Ark.App. 296, at 8-9;
see also Williams v. State, 364 Ark. 203, 208-10,
217 S.W.3d 817, 820-21 (2005); Davis v.
State, 93 Ark.App. 443, 220 S.W.3d 248 (2005). In
Scott, the appellants argued that "because the
aggravated robbery and the felony-firearm enhancement
statutes require exactly the same proof, they may not be
convicted under both provisions, according to section
5-1-110(b)(1)." 2011 Ark.App. 296, at 7. This is exactly
the argument Anderson and Thompson attempt to raise in the
present case. Although, here, appellants frame their argument
here as a challenge to an illegal sentence, it is not. The
substance of their argument is that the firearm enhancement
is a lesser-included offense of aggravated robbery and
aggravated burglary. These are not issues that are apparent
on the face of the sentence and do not relate to whether the
sentence exceeded the statutory maximum. Instead, the
Scott court understood this argument to be a
double-jeopardy challenge and rejected it on its merits. In
Scott, we held,
Contrary to appellants' argument, the firearm enhancement
under section 16-90-120 is not a substantive criminal
offense; rather, it is a sentencing enhancement specifically
intended to provide additional punishment for the use of a
firearm during the commission of the underlying felony
itself. Thus, the enhancement provision does not violate
section 5-1-110(a)'s proscription against being convicted
of more than one "offense" under the circumstances
set out in the statute, and appellants' double-jeopardy
rights were not violated. We affirm.
2011 Ark.App. 296, at 9.
argument is not properly framed as a challenge to an illegal
sentence, meaning that it is unpreserved for our review.
Moreover, the underlying issues have been directly considered
and rejected by this court in Scott, and we decline
to revisit that holding.
Gruber, C.J., and ...