APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION
[NO. 60CR-12-2645] HONORABLE HERBERT WRIGHT, JUDGE
Swift, pro se appellant.
Rutledge, Att'y Gen., by: Michael A. Hylden, Ass't
Att'y Gen., for appellee.
KARENR. BAKER, Associate Justice.
Tyrone Swift appeals to this court from the dismissal by the
trial court of his pro se petition and amended petition to
correct an illegal sentence pursuant to Arkansas Code
Annotated section 16-90-111 (Repl. 2016). He argued in the
petition and amended petition that sentences imposed on him
in 2013 for first-degree battery and first-degree criminal
mischief were illegal because he did not knowingly and
intelligently sign the agreement to enter his plea as a
habitual offender, because his trial counsel did not
adequately explain his plea agreement, and because the
Arkansas Department of Correction (ADC) erred in its
determination that he would be required to serve 100 percent
of his sentence for his first-degree battery conviction
without being eligible for parole. The trial court held that
Swift did not establish that his sentences were illegal on
their face, and thus he was not entitled to relief under the
statute. The trial court further held that, to the extent
Swift raised claims pursuant to Arkansas Rule of Criminal
Procedure 37.1, Swift's claims were untimely and
successive. For the reasons set forth below, Swift fails to
demonstrate that he is entitled to relief, and we therefore
December 17, 2013, judgment was entered in Swift's case
reflecting that he entered a plea of guilty to first-degree
battery and first-degree criminal mischief for which he was
sentenced as a habitual offender under Arkansas Code
Annotated section 5-4-501(b) (Supp. 2011) to serve an
aggregate sentence of 300 months'
imprisonment. In November 2016, Smith sought relief from
the judgment pursuant to section 16-90-111. While 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an illegal manner were superseded by Arkansas Rule of
Criminal Procedure 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. For
that reason, the trial court had authority to grant relief
under the statute if the sentence imposed on Swift had indeed
been illegal. Ark. Code Ann. § 16-90-111(a); Jenkins
v. State, 2017 Ark. 288, 529 S.W.3d 236.
illegal sentence is one that is illegal on its face.
Fischer v. State, 2017 Ark. 338, 532 S.W.3d 40. A
sentence is illegal on its face when it is void because it is
beyond the trial court's authority to impose and gives
rise to a question of subject-matter jurisdiction.
Lambert v. State, 286 Ark. 408, 692 S.W.2d 238
(1985). A sentence imposed within the maximum term prescribed
by law is not illegal on its face. See Fischer, 2017
Ark. 338, 532 S.W.3d 40; see also Green v. State,
2016 Ark. 386, 502 S.W.3d 524.
first contends that the trial court erred in denying relief
on the ground that he was not informed before he entered his
plea that he would be sentenced as a habitual
offender. As support for the contention, he notes
that the designation "habitual offender" on the
plea agreement was circled rather than checked. Swift further
alleges that he was misinformed by his attorney that, if he
signed the plea agreement, he would serve only five years
before being eligible for parole and that he did not agree to
the sentence imposed or understand that he would be required
to serve the complete sentence. In short, Swift contends he
entered his plea prompted by poor, inaccurate advice received
from his attorney.
the sentences that were imposed on Swift did not exceed the
sentences permitted by subsection (b) of the
habitual-offender act. First-degree battery, a class B
felony, is subject to a term of imprisonment of not less than
five years nor more than forty years. Ark. Code Ann. §
5-4-501(b)(2)(C). Swift was sentenced to 360' months or
30 years' imprisonment for the first-degree battery
conviction, a period of time well within the maximum term.
First-degree criminal mischief, a class D felony, is subject
to a term of imprisonment of not more than fifteen years.
Ark. Code Ann. § 5-4-501(b)(2)(E). In the same vein,
Swift was sentenced to a term of 120 months' or 10
years' imprisonment for the first-degree
criminal-mischief conviction, a period of time within the
maximum term of imprisonment for a class D felony subject to
the habitual-offender enhancement. Swift is not entitled to
relief to correct an illegal sentence because his sentences
are not illegal.
Swift has not demonstrated that he was entitled to have his
sentence vacated under the statute because the fact that the
designation on the plea agreement that he was being sentenced
as a habitual offender was circled rather than checked is not
sufficient to render the judgment illegal on its face.
Cf. Green v. State, 2017 Ark. 361, 533 S.W.3d 81
(judgment entered after Green pleaded guilty was facially
invalid because it lacked checkmark in the box on the
judgment itself to indicate that he was sentenced as a
habitual offender). Swift initialed and signed the plea
agreement, indicating that he understood the sentencing range
for the offenses. Simply put, Swift's claim regarding the
plea agreement does not demonstrate that his sentence is
illegal on its face.
also contends he would not have signed the plea statement had
either his counsel or the court explained that he would serve
twenty-five years "day for day" before being
released. Swift argues that had counsel advised him that he
was entering a plea as a habitual offender and would serve
100 percent of his sentence, he would not have pleaded. The
ADC's determination concerning parole eligibility does
not call into question the legality of the original judgment
and is not a ground for relief under section 16-90-111.
Green, 2017 Ark. 361, 533 S.W.3d 81.
extent Swift raises claims regarding the illegal imposition
of sentence or of ineffective assistance of counsel, those
claims should have been raised in a timely Rule 37.1
petition. The trial court held that Swift had
previously sought Rule 37.1 relief, was denied relief on the
merits, and is not entitled to file a second petition. The
trial court's decision denying relief in this case was
not clearly erroneous ...