PRO SE MOTION FOR RULE ON CLERK AND BELATED APPEAL
[MILLER COUNTY CIRCUIT COURT, NO. 46CR-92-308]
K. WOOD, Associate Justice
2016, Paul Latham filed in the trial court a pro se petition
to correct an illegal sentence under Arkansas Code Annotated
section 16-90-111 (Repl. 2017). The trial court denied the
petition on June 28, 2017. In its order, the trial court
addressed the petition as one for postconviction relief under
Arkansas Rule of Criminal Procedure 37.1 (2017) and under
Arkansas Code Annotated section 16-90-111, and denied it.
Latham did not timely file a notice of appeal. Now before us
is Latham's pro se motion for rule on clerk and for
belated appeal. As the notice of appeal was untimely, we
treat the motion as a motion for belated appeal. See
McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004).
need not consider Latham's reasons for not filing a
timely notice of appeal because it is clear from the record
that Latham's petition was wholly without merit. An
appeal from an order that denied a petition for
postconviction relief, including a petition filed under
either section 16-90-111 or under Rule 37.1, will not be
permitted to go forward when it is clear that there would be
no merit to the appeal. Gardner v. State, 2017 Ark.
230; see also Justus v. State, 2012 Ark. 91.
Accordingly, Latham's motion to proceed with an appeal is
was found guilty by a jury in the Miller County Circuit Court
of rape. He was sentenced as a habitual offender who had been
adjudged guilty of four or more prior felonies to
seventy-five years' imprisonment. We affirmed. Latham
v. State, 318 Ark. 19, 883 S.W.2d 461 (1994).
Latham's sole claim for relief in the petition was the
allegation that the seventy-five-year sentence imposed on him
was illegal because it exceeded the maximum penalty for rape
committed by a defendant who had been adjudged guilty of four
or more prior felonies. Latham did not contend that he was
not a habitual offender. He argued that a forty-year sentence
should have been imposed because the statute governing
sentencing for rape provided that the sentence could be forty
years or life, and because the jury did not recommend a
sentence of life, the only sentence that could be legally
imposed was a forty-year sentence.
is a provision in section 16-90-111 that 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. While the time limitations on
filing a petition under section 16-90-111 on the ground that
the sentence was imposed in an illegal manner were superseded
by Arkansas Rule of Criminal Procedure 37.2(c) (2017), 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.
Gardner, 2017 Ark. 230.
sentence is illegal on its face when it exceeds the statutory
maximum for the offense for which the defendant was
convicted. Green, 2016 Ark. 386, 502 S.W.3d 524. The
petitioner seeking relief under section 16-90-111 carries the
burden to demonstrate that his or her sentence was illegal.
As stated above, Latham was entitled to relief under section
16-90-111 only if he established that the judgment in his
case was illegal on its face.
time that Latham was convicted of rape, a Class Y felony, the
applicable statute provided that the sentencing range for a
Class Y felony for a defendant convicted of a felony after
June 30, 1983, and who had been found guilty for four or more
felonies was not less than forty years nor more than life
imprisonment. Ark. Code Ann. § 5-4-501(b)(1) (1987). A
sentence between forty years and life under the statute is
not an illegal sentence. See Claiborne v. State, 319
Ark. 537, 893 S.W.2d 324 (1995). We have held that a sentence
of 300 years' imprisonment for rape was not illegal under
section 5-4-501(b)(1) when the defendant had been convicted
of four or more prior felonies. Franklin v. State,
308 Ark. 539, 825 S.W.2d 263 (1992) (holding that the trial
court properly instructed the jury that a person convicted of
rape as a habitual offender with four or more prior felony
convictions could be sentenced to a term of not less than
forty years nor more than life and that the 300-year sentence
imposed on the defendant was legal even though the term
exceeded the ordinary lifespan of a human being). Latham did
not establish that the sentence imposed on him when he was
convicted of rape in 1993 was an illegal sentence. Therefore,
the denial of his claim for relief under section 16-90-111
was not error. See Green, 2016 Ark. 386, 502 S.W.3d
was also no error in denying the relief sought under Rule
37.1. This court has held that a petition for postconviction
relief attacking a judgment, regardless of the label placed
on it by the petitioner, can be considered pursuant to Rule
37.1. State v. Wilmoth, 369 Ark. 346, 255 S.W.3d 419
(2007). If considered under the Rule, Latham's petition
was not timely filed. Rule 37.2(c) provides that a petition
under the Rule is untimely if not filed within sixty days of
issuance of the appellate court's mandate affirming the
judgment of conviction. The mandate in Latham's direct
appeal was issued on October 7, 1994, but his petition to
correct the sentence imposed was not filed until
approximately twenty-two years later in 2016. The time
limitations imposed in Rule 37.2(c) are mandatory, and the
trial court may not grant relief on an untimely petition.
Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303
(1989). As Latham did not file his petition to correct the
sentences imposed on him within the time limit set by the
Rule, he was not entitled to relief under the Rule.
treated as a motion for belated appeal and denied.
Josephine Linker Hart, Justice, dissenting.
Latham failed to timely file a notice of appeal. It is
axiomatic that a timely filed notice of appeal is required to
give this court appellate jurisdiction. Worsham v.
Day, 2017 Ark. 192, 519 S.W.3d 699; Lindsey v.
Green, 2010 Ark. 118, 369 S.W.3d 1; McJames v.
State, 2010 Ark. 74. Accordingly, Mr. Latham's
motion for belated appeal must be considered before
we have jurisdiction to consider the merits of this
appeal. At this point, whether or not his appeal has merit
cannot be part of ...