APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT AND MOTION FOR
APPOINTMENT OF COUNSEL [NO. 43CR-15-594] HONORABLE BARBARA
Green, pro se appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
Josephine Linker Hart, Associate Justice.
Rickie Green appeals from an order of the Lonoke County
Circuit Court denying his pro se petition to correct an
illegal sentence. In addition to asserting that the circuit
court's ruling was error, Green also filed a motion for
appointment of counsel. We reverse and remand.
entered a plea of guilty to conspiracy to commit residential
burglary and theft of property. He received identical
sentences of 240 months for each offense; 108 months'
imprisonment, with 132 months of the terms suspended. Green
alleged in his petition that his sentence was illegal on its
face under section 16-90-111 (Repl. 2016). He reasoned that
the sentence stated on the judgment was calculated based on
the assumption that he was a habitual offender, but the
judgment did not reflect that he was sentenced as a habitual
offender. He further asserted that the ADC had erroneously
determined that he was required by statute to serve 100
percent of the 108-month term imposed without the possibility
circuit court's decision to deny relief under section
16-90-111 will not be overturned unless that decision is
clearly erroneous. 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.
that the felony information filed in Green's case stated
that he was charged as a habitual offender with convictions
for four or more prior felony offenses. Furthermore, the plea
agreement set out that Green was pleading guilty as a
habitual offender. When Green entered his plea, the court
asked whether he understood that he was being "sentenced
under a large habitual" and whether he had read,
understood, and signed the plea agreement. Green replied in
the affirmative. Nevertheless, the judgment that was entered
after he pleaded guilty, a copy of which appears in the
record in this appeal, did not have a checkmark in the box on
the judgment to indicates that he was sentenced as a habitual
to commit residential burglary is a class C felony.
See Ark. Code Ann. § 5-39-201(a) (Repl. 2013)
(residential burglary is a Class B felony; pursuant to Ark.
Code Ann. § 5-3-404(3); criminal conspiracy is a Class C
felony if the object of the conspiracy is a Class B felony).
Theft of property valued at between $1000 and $5000 is a
Class D felony. A Class D felony carries a maximum penalty of
72 months' imprisonment. Ark. Code Ann. §
5-4-401(a)(5) (Repl. 2013). As stated, the judgment reflects
that Green was sentenced to 240 months' imprisonment for
first that even if Green was sentenced as a habitual offender
for the Class D felony, the aggregate sentence imposed for
that offense could not exceed 180 months. Ark. Code Ann.
§ 5-4-501(b)(2)(E) (Repl. 2013). Accordingly, this
sentence, by any calculation, exceeded the statutory maximum.
Regarding the Class C felony, unless Green was sentenced as a
habitual offender, which the sentencing order failed to
indicate, his sentence exceeded the statutory maximum of 120
months' imprisonment. A sentence is illegal on its face
when it exceeds the statutory maximum for the offense for
which the defendant was convicted. Bell v. State,
2017 Ark. 231, 522 S.W.3d 788. Accordingly, the circuit court
clearly erred when it denied Green's petition to correct
his illegal sentence.
the circuit court clearly erred, we reverse and remand this
case to the circuit court for further proceedings consistent
with this opinion. Upon remand, the circuit court has full
authority to correct Mr. Green's illegal sentence. Ark.
Code Ann. § 16-90-111. The circuit court may either
reduce Mr. Green's sentence to no more than the statutory
maximums for each offense, or indicate on the sentencing
order that he was sentenced as a habitual offender and
adjust the aggregate sentence for the theft of property
conviction. Such fact-finding is outside of this
court's appellate jurisdiction. See Looper v. Madison
Guar. Sav. & Loan Ass'n, 292 Ark. 225, 227-28.
729 S.W.2d 156, 157 (1987) (holding "we are an appellate
court; we do not retry cases.)
argues that the ADC has misapplied certain statutes in
calculating whether he is eligible for parole. The claim is
not a ground for relief under section 16-90-111 because the
ADC's determination concerning parole eligibility does
not call into question the legality of the original judgment
in the case.
we deny Green's motion for ...