MOTION FOR RULE ON CLERK [BENTON COUNTY CIRCUIT COURT, NO.
F. WYNNE, ASSOCIATE JUSTICE.
petitioner Robert William Fischer's convictions and
sentences were affirmed on appeal, Fischer v. State,
2011 Ark.App. 580, Fischer filed in the trial court an
amended pro se petition for relief from an illegal sentence
pursuant to Arkansas Code Annotated section 16-90-111 (Repl.
2016), which was denied. Fischer filed a timely notice of appeal
from the denial of relief; however, the record was tendered
111 days after the notice of appeal had been filed. Fischer
has now filed a motion for rule on clerk seeking to have the
record lodged to pursue an appeal. We need not consider the
merits of the motion for rule on clerk because it is clear
from the record that Fischer cannot prevail, as he fails to
argue that his sentence is illegal on its face pursuant to
section 16-90-111. We deny Fischer's motion.
amended petition for relief from an illegal sentence, Fischer
argued his multiple consecutive sentences were illegal
"under one (1) offense, one (1) class c felony . . . on
its face[.]" Specifically, he contended that he was
convicted of only one class C felony offense, for which he
could be sentenced from three to ten years' imprisonment.
He further argued that his sentence was unconstitutionally
long. Fischer also argued that the words of the statute
governing concurrent and consecutive sentencing was clear and
free from all ambiguity. The trial court found that Fischer
was found guilty of six counts of a class C felony and was
sentenced to ten year's imprisonment to be served
consecutively, which was the sentence imposed on the
defendant pursuant to Arkansas Code Annotated section
5-4-403(a) (Repl. 2006).
court will not reverse the trial court's decision
granting or denying postconviction relief unless it is
clearly erroneous. Kemp v. State, 347 Ark. 52, 55,
60 S.W.3d 404, 406 (2001). A finding 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
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an illegal manner were superseded by Rule 37.2(c), the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. See
Beyard v. State, 2017 Ark. 203, at 2-3. For that reason,
the trial court had authority to grant relief under the
statute if the sentence imposed on Fischer had indeed been
is entirely a matter of statute in Arkansas, and no defendant
convicted of an offense may be sentenced other than as
provided by statute. Maldonado v. State, 2009 Ark.
432, at 3. An illegal sentence is one that is illegal on its
face. Lovelace v. State, 301 Ark. 519, 520, 785
S.W.2d 212, 213 (1990). A sentence is illegal on its face
when it exceeds the statutory maximum for the offense for
which the defendant was convicted. Green v. State,
2016 Ark. 386, at 6, 502 S.W.3d 524, 528.
was charged with and convicted of six counts of distributing,
possession, or viewing of matter depicting sexually explicit
conduct involving a child, which is a class C felony for the
first offense. See Ark. Code Ann. §
5-27-602(b)(1) (Repl. 2006). The sentence shall not be less
than three years or more than ten years for a class C felony.
Ark. Code Ann. § 5-4-401(a)(4) (Repl. 2006). Although
Fischer argued his sentence was unconstitutionally long, the
jury recommended and the court fixed Fischer's sentence
at ten years' imprisonment for each count, which is
clearly within the statutory range of three to ten years.
See Green, 2016 Ark. 386, at 6, 502 S.W.3d at 528.
Fischer's judgment-and-commitment order is facially legal
regarding his six sentences of ten years of imprisonment for
each of the six counts for which he was convicted.
claims that Arkansas Code Annotated section 5-4-403(a), which
governs concurrent and consecutive sentences, applies to his
case and seems to imply that he could be sentenced to only
one term of ten years concurrently. Our law provides that
"[w]hen multiple sentences of imprisonment are imposed
on a defendant convicted of more than one (1) offense . . .
the sentences shall run concurrently unless, upon
recommendation of the jury or the court's own motion, the
court orders the sentences to run consecutively." Ark.
Code Ann. § 5-4-403(a). Whether sentences should have
been imposed concurrently or consecutively, that decision was
solely within the province of the trial judge. See Smith
v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). As long as
the sentences were not excessive, the issue of whether the
sentences should have run concurrently or consecutively
should have been raised at trial and does not present a
proper basis for a postconviction claim. See Bell v.
State, 2017 Ark. 231, at 5, 522 S.W.3d 788, 790.
trial court sentenced Fischer to consecutive terms of
imprisonment as provided by Arkansas Code Annotated section
5-4-403(a), which is clearly statutorily permitted and does
not exceed the statutory maximum for the offenses. Notably,
Fischer's allegation in the petition was not sufficient
to demonstrate that the consecutive sentences that were
imposed were facially illegal. See Blanks v. State,
300 Ark. 398, 779 S.W.2d 168 (1989). The trial court's
decision in this case was not clearly erroneous because
Fischer did not meet his burden of demonstrating in his
petition that the sentences imposed on him in the judgment
Josephine Linker Hart, Justice, dissenting.
timely filing of a transcript is a jurisdictional question,
and the failure to timely file deprives this court of
authority to hear the appeal. T. Ricks, LLC v. Kent,
2014 Ark. 269; see also Ark. Sup. Ct. R. 2-2.
Without jurisdiction, this court cannot consider an appeal on
the merits. Kent, supra. Contrary to the
majority's assertion that "we need not consider the
merits of the motion for rule on the clerk" to determine
whether this court has jurisdiction, we