APPEAL FROM THE NEVADA COUNTY CIRCUIT COURT; MOTION FOR
RELIEF FROM ERROR OF SENTENCE AND RELEASE [NO. 50CV-16-19]
HONORABLE RANDY WRIGHT, JUDGE
Wesley, pro se appellant.
Rutledge, Att'y Gen., by: David R. Raupp, Ass't
Att'y Gen., for appellee.
1993, appellant Eugene Wesley was convicted of aggravated
robbery, kidnapping, and theft for which he received
sentences of life, twenty years', and ten years'
imprisonment, respectively. The kidnapping sentence was
ordered to run consecutively to the life sentence. His
convictions and sentences were affirmed by this court.
Wesley v. State, 318 Ark. 83, 883 S.W.2d 478 (1994).
The mandate issued on October 14, 1994.
subsequently filed in the trial court a pro se petition
pursuant to Rule 37.1 of the Arkansas Rules of Criminal
Procedure (1993), which was denied by the trial court.
Although Wesley filed a timely notice of appeal, his attempt
to perfect the appeal was untimely, and he sought a motion
for rule on clerk from this court, which was denied.
Wesley v. State, CR-96-86 (Ark. Mar. 11, 1996)
(unpublished per curiam).
2013, Wesley, who was-and still is-incarcerated at a prison
facility in Lee County, filed in the Lee County Circuit Court
a pro se petition to correct an illegal sentence pursuant to
Arkansas Code Annotated section 16-90-111 (Repl. 2016), which
was denied by the circuit court. Wesley's appeal was
dismissed because he could not prevail. Specifically,
Wesley's petition to correct the sentence that was
imposed in Nevada County was filed in the wrong court because
the circuit court in Lee County had no jurisdiction to
consider the petition to correct a judgment of conviction
that had not been entered in Lee County. Wesley v.
Hobbs, 2014 Ark. 260 (per curiam).
March 29, 2016, Wesley filed a petition to correct an illegal
sentence pursuant to Arkansas Code Annotated section
16-90-111 in the Nevada County Circuit Court, claiming his
sentence was illegal because the trial court sentenced him in
excess of the "mandatory sentencing guideline of
aggravated robbery" and because he was charged and
convicted on offenses based on the same conduct that violated
the prohibition against double jeopardy. The trial court
entered an order dismissing the petition with prejudice,
finding that Wesley failed to provide proof of service of the
summons and named the wrong party to the action. The trial
court further found that, even if Wesley had named the proper
party, Wesley's sentences were within the range
prescribed by statute; his double-jeopardy claim was not
cognizable under section 16-90-111; and, if the petition were
deemed a Rule 37.1 petition, it would be a successive
petition subject to dismissal. Now before the court is
Wesley's appeal from the dismissal with prejudice of his
petition for relief pursuant to section 16-90-111 and his
motion for relief from error of sentence and release, which
he has titled a petition for writ of mandamus.
trial court found that Wesley improperly named Wendy Kelley,
Director of the ADC, as a party, and the appellee argues that
the trial court did not err by dismissing the petition on
that basis. Because the petition to correct illegal sentence
pursuant to section 16-90-111 should have been filed against
the State and not against Kelley, Wesley's custodian, and
because the State should have been served with the petition
and was not, the matter should have been dismissed with
regard to Kelley as an improper party to the cause of action.
See Wesley, 2014 Ark. 260. The Nevada County Circuit
Court had no jurisdiction to make a merit determination on
this matter. Wesley may refile a petition to correct an
illegal sentence pursuant to section 16-90-111 in the Nevada
County Circuit Court against the State in his underlying
criminal circuit court case number, and if an order is
entered adverse to Wesley, he will be required to perfect an
appeal of the new order in compliance with our rules of
procedure. See Carroll v. Baker, 2011 Ark. 98 (per
A petition under section 16-90-111 is a
request for postconviction relief from a judgment of
conviction; as such, it is properly filed in the trial court
where the judgment was entered under the docket number for
the criminal judgment being challenged. Wesley, 2014
Ark. 260, at 1, n.1. Because the judgment under attack in
Wesley's case was not entered in Lee County, the Lee
County Circuit Clerk filed Lee's petition as a civil
Although Wesley named Wendy Kelley,
Director of the Arkansas Department of Correction
("ADC"), as the respondent, Wesley's petition
was titled a petition to correct an illegal sentence pursuant
to Arkansas Code Annotated section 16-90-111. The case was
docketed with a civil docket number when it became apparent
that it should have been docketed under the number for ...