WALLACE A. GARDNER APPELLANT
STATE OF ARKANSAS APPELLEE
APPELLANT'S MOTIONS FOR EXTENSION OF BRIEF TIME AND FOR
ORDER FOR CIRCUIT CLERK TO PROVIDE DOCUMENTS TO APPELLANT
[PULASKI COUNTY CIRCUIT COURT, NO. 60CR-04-1077] HONORABLE
CHRISTOPHER CHARLES PIAZZA, JUDGE
Wallace A. Gardner, pro se appellant.
DAN KEMP, CHIEF JUSTICE.
Wallace Gardner has lodged an appeal from the trial
court's order denying his pro se petition pursuant to
Arkansas Code Annotated section 16-90-111 (Repl. 2016) to
correct a sentence imposed on him in 2004. Gardner alleged in
his petition that his sentence was illegal. Section
16-90-111(a) 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.
Green v. State, 2016 Ark. 386, 502 S.W.3d 524.
Gardner's motions are now before us seeking an extension
of brief time and an order directed to the trial court's
clerk to provide him with certain documents. We dismiss the
appeal as it is clear from the record that Gardner could not
prevail. An appeal from an order that denied a petition for
postconviction relief, including a petition filed under
either section 16-90-111 or under Arkansas Rule of Criminal
Procedure 37.1 (2016), will not be permitted to go forward
where it is clear that there is no merit to the appeal.
See Justus v. State, 2012 Ark. 91. The motions filed
by appellant are rendered moot by the dismissal of the
argued that his sentence was illegal because he was found
guilty in 2004 of capital murder with aggravated robbery as
the underlying felony, and the capital-murder statute,
Arkansas Code Annotated section 5-10-101 (Repl. 1997), did
not enumerate aggravated robbery as an underlying offense to
capital murder at the time he committed the offenses. He also
argued that it was an ex post facto application of Act 827 of
2007 for him to be convicted of capital murder with
aggravated robbery as an underlying offense because the Act
added "aggravated robbery" to the enumerated list
of underlying felonies to capital murder after he had
committed the offenses and been convicted.
the time limitations on filing a petition under section
16-90-111(a)(b)(1) alleging that the sentence was imposed in
an illegal manner were superseded by Rule 37.2(c), the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.
Id. For that reason, the trial court had authority
to grant relief under the statute if the sentence imposed on
Gardner had indeed been illegal. Id. However, the
trial court denied the relief sought because the petition was
not timely filed under Rule 37.2. Despite this, we will
affirm when the trial court's decision is correct, albeit
for the wrong reason. Dandridge v. State, 292 Ark.
40, 42, 727 S.W.2d 851, 852 (1987).
addressed the sentencing claim raised by Gardner in prior
cases and held that a trial court has specific authority to
sentence a defendant for the underlying felony supporting a
capital-murder charge, as well as the felony of capital
murder itself, even if the statute listed "robbery"
rather than "aggravated robbery" as an underlying
offense. Nooner v. State, 322 Ark. 87, 907 S.W.2d
677 (1995); McClendon v. State, 295 Ark. 303, 748
S.W.2d 641 (1988). Even if aggravated robbery was not
specifically enumerated by statute at the time the offenses
were committed, this court has held that aggravated robbery
will support a charge of capital murder. See Nooner,
322 Ark. 87, 907 S.W.2d 677; Simpson v. State, 274
Ark. 188, 193, 623 S.W.2d 200, 203 (1981) ("The General
Assembly could not conceivably have intended that robbery,
which may involve no force, would support a charge of capital
murder, while aggravated robbery, an inherently dangerous
crime, would not."). With respect to Act 827 of 2007,
the fact that the statute was changed to include aggravated
robbery as an underlying felony after Gardner was convicted
does not alter our reasoning under the precedent cited above.
not discuss any other claims that Gardner raised because
those allegations could have been raised at trial, on direct
appeal, or in a timely petition for postconviction relief
under Rule 37.1. Rule 37.2(c) requires that, when an appeal
was taken from the judgment of conviction, a petition under
the Rule must be filed in the trial court within sixty days
of the date the mandate is issued by the appellate court.
Ark. R. Crim. P. 37.2(c)(ii); see State v. Harrison,
2012 Ark. 198, 404 S.W.3d 830. The time requirements are
mandatory, and when a petition under Rule 37.1 is not timely
filed, a trial court shall not consider the merits of the
petition and grant postconviction relief. See Maxwell v.
State, 298 ...