MYRON NEWJEAN ANDERSON, JR. APPELLANT
STATE OF ARKANSAS APPELLEE
APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT; PRO SE MOTION
FOR APPOINTMENT OF COUNSEL [NO. 02CR-06-197]
N. Anderson, pro se appellant.
Rutledge, Att'y Gen., by: Rachel Kemp, Ass't
Att'y Gen., for appellee.
R. BAKER, Associate Justice
Myron Newjean Anderson, Jr., filed a pro se motion for
appointment of counsel in connection with an appeal from
orders entered by the circuit court denying Anderson's
pro se "Motion for Leave to File an Amended Declaratory
Judgment" and a petition to correct an illegal sentence
pursuant to Arkansas Code Annotated section 16-90-111 (Repl.
2016). Anderson sought a declaratory judgment on
the basis that the elements of a terrorist act as set forth
in Arkansas Code Annotated section 5-13-310 (Repl. 2006) are
internally inconsistent, which Anderson contends renders the
statute unconstitutional. In his petition to correct an
illegal sentence, Anderson asserted that his sentence is
illegal because it was imposed pursuant to an allegedly
unconstitutional statute. On appeal, Anderson advances the
same arguments and allegations contained in the pleadings
reasons set forth below, it is clear from a review of the
record that Anderson has failed to allege sufficient facts or
to provide authority establishing that the challenged statute
is unconstitutional on its face or in its application and has
likewise failed to demonstrate that his sentences are
facially illegal. We therefore affirm, which renders his
motion for appointment of counsel moot.
2007, a jury found Anderson guilty of five counts of
committing a terroristic act and one count of being a felon
in possession of a firearm, which arose out of the shooting
of seven persons in a nightclub. The jury imposed an
aggregate sentence of 1320 months' imprisonment in the
Arkansas Department of Correction. The Arkansas Court of
Appeals affirmed. Anderson v. State, CR-08-458 (Ark.
App. Jan. 28, 2009) (unpublished) (original docket no. CACR
contended below and contends on appeal that the statute under
which he was charged and convicted is unconstitutional
because there are inconsistencies with respect to the
definition of the elements of the offense. Anderson's
arguments are difficult to discern, but he appears to contend
that the statute is inconsistent in that one subsection
defines the offense to include shooting with the purpose of
causing injury to another person; while another subsection of
the act defines the offense narrowly to include shooting with
the purpose of causing injury to another person at an
occupiable structure. Anderson asserts that he was denied due
process because the information failed to provide notice that
a terroristic act must be committed against the occupant of
an occupiable structure. Anderson fails to explain or to
provide any authority for the proposition that the alleged
inconsistency in Arkansas Code Annotated section
5-13-310(a)(1)(A) and section 5-13-310(a)(2) renders the
statute unconstitutional on its face or to establish how the
alleged inconsistency amounted to a denial of due
well settled that there is a presumption of validity
attending every consideration of a statute's
constitutionality that requires the incompatibility between
it and the constitution to be clear before we will hold it
unconstitutional. Miller v. Ark. Dep't of Fin. &
Admin., 2012 Ark. 165, at 7, 401 S.W.3d 466, 470. Any
doubt as to the constitutionality of a statute must be
resolved in favor of its constitutionality, and the heavy
burden of demonstrating the unconstitutionality is on the one
attacking it. Id. If possible, this court will
construe a statute so that it is constitutional. Id.
(citing McLane S., Inc. v. Davis, 366 Ark. 164, 233
S.W.3d 674 (2006)). Invalidating a statute on its face is,
manifestly, strong medicine that has been employed sparingly
and only as a last resort. Nat'l Endowment for the
Arts v. Finley, 524 U.S. 569, 580 (1998). Furthermore,
we will not strike down a legislative act on constitutional
grounds without first having the benefit of a fully developed
adversary case in the lower court. Drummond v.
State, 320 Ark. 385, 389, 897 S.W.2d 553, 555 (1995).
order to sufficiently challenge a statute as unconstitutional
on its face, an appellant is required to develop allegations
before the circuit court that are supported by sufficient
authority that the statute is either void for vagueness or
overbroad. See Raymond v. State, 354 Ark. 157, 167,
118 S.W.3d 567, 574 (2003). The facial-overbreadth doctrine
is restricted in its application and is not recognized
outside the limited context of the First Amendment.
Musser v. Mapes, 718 F.3d 996, 1001 (8th Cir. 2013)
(citing United States v. Salerno, 481 U.S. 739, 745
(1987)); see also Bailey v. State, 334 Ark. 43, 54,
972 S.W.2d 239, 245 (1998).
void-for-vagueness doctrine requires that a penal statute
define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and
in a manner that does not encourage arbitrary and
discriminatory enforcement. Kolender v. Lawson, 461
U.S. 352, 357-58 (1983); see also Cambiano v. Neal,
342 Ark. 691, 704, 35 S.W.3d 792, 799-800 (2000). A person
whose actions are clearly proscribed by a statute cannot
assert its potential vagueness as applied to other persons or
circumstances unless the law restricts constitutionally
protected conduct. Garner v. White, 726 F.2d 1274,
1278 (8th Cir. 1984). We have held that, as a general rule,
the constitutionality of a statutory provision being attacked
as void for vagueness is determined by the statute's
applicability to the facts at issue. Bowker v.
State, 363 Ark. 345, 355-56, 214 S.W.3d 243, 249 (2005).
When challenging the constitutionality of a statute on
grounds of vagueness, the individual challenging the statute
must be one of the "entrapped innocent" who has not
received fair warning that certain conduct has been
proscribed. Id. However, if, by his or her action,
that individual clearly falls within the conduct proscribed
by the statute, he or she cannot be heard to complain.
Anderson did not argue that the challenged statute was either
overbroad or void for vagueness, and there is no authority
that would have supported such arguments. Arkansas Code
Annotated section 5-13-310 does not implicate First Amendment
rights, and Anderson can hardly be considered an
"entrapped innocent" as his conduct of firing shots
inside a crowded nightclub clearly fell within the conduct
proscribed by the statute. Bowker, 363 Ark. at
355-56, 214 S.W.3d at 249. Nor does Anderson provide
authority or argument demonstrating that he was denied due
process in the application of the statute under circumstances
that led to his convictions and sentences. This court has
said on numerous occasions that it will not consider
arguments, even constitutional ones, that are not supported
by legal authority or convincing argument and will not
address arguments when it is not apparent without further
research that the argument is well taken. Williams v.
State, 371 Ark. 550, 558, 268 S.W.3d 868, 874 (2007). In
sum, Anderson does not meet the heavy burden necessary to
mount a constitutional challenge to section 5-13-310.
Miller, 2012 Ark. 165, at 7, 401 S.W.3d at 470.
allegations set forth in Anderson's petition to correct
an illegal sentence are equally unavailing. Under Arkansas
Code Annotated section 16-90-111 (Repl. 2016), a sentence is
illegal when it is illegal on its face, and we have explained
that 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, at 3-4, 522
S.W.3d 788, 790 (citing Renshaw v. Norris, 337 Ark.
494, 989 S.W.2d 515 (1999)). Anderson does not contend that
the sentences imposed on him exceeded the statutory maximum.
Rather, he argues that his sentences are illegal based on his
allegation that section 5-13-310 is unconstitutional. A
review of the record clearly shows that Anderson's
sentences did not exceed the statutory maximum.
judgment-and-commitment order reflects that Anderson was
convicted of five counts of committing a terroristic act, of
which three counts were designated as Class Y felonies, and
two counts were designated as Class B felonies under section
5-13-310(b)(1) and (b)(2). Anderson was also convicted of
being a felon in possession of a firearm, which is a Class B
felony. See Ark. Code Ann. § 5-73-103(c)(1)
(Repl. 2006). Moreover, Anderson's habitual-offender
status subjected him to enhanced sentences for Class Y
felonies of not less than ten years nor more than sixty years
or life, as well as enhanced sentences for Class B felonies
of not less than five years nor more than thirty years. Ark.
Code Ann. § 5-4-501(a)(2)(A) & (2)(C) (Repl. 2006).
Anderson was sentenced to two terms of 240 months'
imprisonment and one term of 480 months' imprisonment for
his convictions for three counts of a Class Y terrorist act;
and was sentenced to two terms of 120 months'
imprisonment for his convictions for two counts of a Class B
terroristic act; finally, he was sentenced to 360 months'
imprisonment for his conviction for one count of being a
felon in possession ...