APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO.
35CV-16-264], HONORABLE JODI RAINES DENNIS, JUDGE
Kedrick Trevon Darrough, Sr., pro se appellant.
Rutledge, Att'y Gen., by: Vada Berger, Ass't
Att'y Gen., for appellee.
A. WOMACK, ASSOCIATE JUSTICE.
Trevon Darrough appeals the denial of his petition for writ
of habeas corpus filed pursuant Arkansas Code Annotated
section 16-112-101 to -123 (Repl. 2006) in which he alleged
that his sentence was illegally enhanced pursuant to Arkansas
Code Annotated section 5-64-408 (Supp. 2003). On appeal,
Darrough argues that the circuit court erred by failing to
grant his motion for default judgment, by not reducing his
sentence because he was not subject to an enhancement with an
out-of-state conviction pursuant to section 5-64-408, and by
not holding an evidentiary hearing. The circuit court's
denial of habeas relief was not clearly erroneous and is
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 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 being illegally
detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl.
2006). A habeas proceeding does not afford a prisoner an
opportunity to retry his or her case, and it is not a
substitute for direct appeal or postconviction relief.
See Noble v. Norris, 368 Ark. 69, 243 S.W.3d 260
(2006). A circuit court's decision on a petition for writ
of habeas corpus will be upheld unless it is clearly
erroneous. Hobbs v. Gordon, 2014 Ark. 225, at 5, 434
S.W.3d 364, 367. A decision is clearly erroneous when,
although there is evidence to support it, the appellate
court, after reviewing the entire evidence, is left with the
definite and firm conviction that a mistake has been made.
Id. Unless the petitioner 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, at 2.
initial matter, although Darrough argues that that he was
entitled to have the court issue a summary judgment in his
favor when the State failed to respond to his habeas petition
and motion for default judgment, the Arkansas Rules of Civil
Procedure do not apply to an action filed pursuant to
Arkansas Code Annotated section 16-112-103. See Baker v.
Norris, 369 Ark. 405, 415, 255 S.W.3d 466, 472 n.2
(2007) (The Arkansas Rules of Civil Procedure have never been
applied to postconviction proceedings nor do they apply to a
postconviction habeas proceeding.); Sanders v.
State, 352 Ark. 16, 24-25, 98 S.W.3d 35, 40-41 (2003).
Contrary to Darrough's contention, the State was not
required to file a return until the court made a
determination of probable cause-which it did not do here.
See Hobbs v. Hodge, 2015 Ark. 207, at 5-6, 461
S.W.3d 704, 707. Because the State was not required to file a
return, the circuit court properly denied Darrough's
request for default judgment.
argues that his sentence is illegal because the circuit court
lacked authority to enhance his sentence with an out-of-state
conviction pursuant to Arkansas Code Annotated section
5-64-408. Darrough further contends he was entitled to an
evidentiary hearing. As he argued below, Darrough contends that
his judgment-and-commitment order indicates that his
sentences for possession of cocaine with intent to deliver
and possession of marijuana with intent to deliver were
illegally enhanced by Arkansas Code Annotated section
5-64-408. Citing to Sossamon v. State, 31 Ark.App.
131, 789 S.W.2d 738 (1990), he argues that a previous
California conviction for possession of marijuana was used to
illegally enhance his sentences because he is a first-time
offender in Arkansas. Therefore, his sentences could not have
been enhanced pursuant to section 5-64-408, as a "second
and subsequent offen[der]."
Kelley, director of the Arkansas Department of Correction
(ADC), counters that Darrough made "bare
statements" that were not adequate to meet his burden
for probable cause to have the writ issue. Because Darrough
failed to meet his probable-cause burden and establish that
the California conviction "was, in fact, the conviction
that was used in the Drew County Circuit Court proceedings to
enhance his sentence pursuant to § 5-64-408[, ]"
Kelley contends that the ADC was not required to file a
response to the habeas petition. The circuit court agreed
with Kelley, noting Darrough's previously filed a habeas
petition in Lee County making the same allegation.
Darrough v. State, 2013 Ark. 28 (denying relief).
The circuit court denied relief, finding that, although
Darrough attached a copy of a California conviction to his
petition, a writ may not be supported by mere statements
placed in the petition and that Darrough failed to establish
probable cause to support issuance of the writ.
the circumstances of Darrough's first habeas petition,
see Darrough, 2013 Ark. 28, Darrough attached his
California conviction to the habeas petition that is the
subject of this appeal. Darrough's assertion of the lack
of jurisdiction of the trial court that resulted in his claim
of an illegal sentence is not made by "bare
statements" or "mere statements placed in the
petition" but rather is supported by evidence that he
claims is the prior conviction used to support the
enhancement of his sentence. The State is correct that it
need not file a return until a probable-cause determination
was made. See Hodge, 2015 Ark. 207, at 5-6, 461
S.W.3d at 707; see also Gordon, 2014 Ark. 225, 434
the State's assertion, and the circuit court's
finding, that Darrough made only a bare assertion that failed
to establish probable cause is not accurate. Darrough made
more than a bare assertion in his pleading-he attached the
prior California conviction, alleging it was his first and
only prior conviction; he nevertheless failed to obtain or
attach the record from any part of his sentencing hearing,
which may have aided him in establishing probable cause.
See Lukach v. State, 310 Ark. 38, 834 S.W.2d 642
(1992) (holding that the burden is on the appellant to bring
forth a record that demonstrates error). Even though Darrough
presented more than a bare assertion, he misinterprets
Arkansas Code Annotated section 5-64-408 and misplaces
reliance on Sossamon, 31 Ark.App. 131, 789 S.W.2d
738. This court may affirm a circuit court's denial of
habeas relief if the right result was reached for a different
reason. Watkins v. State, 2014 Ark. 283, at 5, 437
S.W.3d 685, 688 n.3. Therefore, Darrough's allegations
fail to establish probable cause that the writ should issue.
Code Annotated section 5-64-408(a) (Supp. 2003) states that
any person convicted of a second or subsequent offense
"under this chapter shall be imprisoned for a term up to
twice the term otherwise authorized . . . ." Subsection
(b) states that an offense is considered a second or
subsequent offense "if, prior to his or her conviction
of the offense, the offender has at any time been convicted
under this chapter or under any statute of the United States
or any state relating to a narcotic drug, marijuana,
depressant, stimulant, or a hallucinogenic drug."
However, the section does not apply to an offense under
section 5-64-401(c). Ark. Code Ann. § 5-64-408(c).
Arkansas Code Annotated section 5-64-401(c) (Supp. 2003),
otherwise known as "simple possession, " states
that it is unlawful for any person to possess a controlled
was convicted of possession of cocaine with intent to deliver
and possession of marijuana with intent to deliver-both of
which fall under Arkansas Code Annotated section 5-64-401(a),
not subsection (c). In Sossaman, the appellant was
convicted of simple possession pursuant to Arkansas Code
Annotated section 5-64-401(c), thereby, making Sossaman
subject to the limitation that prevented the application of
the enhancement in Arkansas Code Annotated section 5-64-408.
Sossaman, 31 Ark.App. 131, 789 S.W.2d 738. In this
case, Darrough was not convicted of simple possession and was
not subject to the limitation preventing the enhancement of
his sentences. Further, Darrough's previous California
conviction does not fall under either of the exceptions to
section 5-64-408(c); therefore his convictions under
subsection (a) are not precluded from having the sentencing
enhancement in section 5-64-408(c) applied. The trial court
did not lack jurisdiction to sentence Darrough utilizing the
enhancement in section ...