APPEAL FROM THE MILLER COUNTY CIRCUIT COURT; MOTION TO FILE A
BELATED REPLY BRIEF [NO. 46CR-90-424] HONORABLE KIRK JOHNSON,
White, pro se appellant.
Rutledge, Att'y Gen., by: Michael A. Hylden, Ass't
Att'y Gen., for appellee.
AFFIRMED; MOTION MOOT.
RHONDAK.WOOD, Associate Justice.
Ricky Wayne White appeals the trial court's denial of his
petition to correct an illegal sentence. In 1991, White was
sentenced as a habitual offender to seventy-five years'
imprisonment for aggravated robbery. Because we agree that
White's petition failed to state a basis for relief under
either Arkansas Code Annotated section 16-90-111 (Repl. 2016)
or Arkansas Rule of Criminal Procedure 37.1 (1991), we
affirm. White's motion for permission to file a belated
reply brief is therefore moot.
court affirmed White's conviction for aggravated robbery
in White v. State, 310 Ark. 200, 833 S.W.2d 771
(1992). The mandate issued July 24, 1992. White filed the
petition that is the subject of this appeal on May 24, 2017,
which is almost twenty-five years after the mandate issued.
petition alleged that his sentence was illegal because two of
the four prior convictions used at trial in support of the
habitual-offender status were unconstitutionally admitted
into evidence. This claim was based on White's contention
that one of the prior convictions did not reflect that he was
represented by counsel and one was for a misdemeanor crime
that had been committed after the aggravated robbery.
trial court's order discussed how there were multiple
grounds upon which White would not be entitled to relief. One
of those was that the petition failed to state a basis for
relief under the statute because it did not raise a claim
that the judgment was illegal or facially invalid, and
instead, the claim was one that the judgment had been
illegally imposed. The court found that because the claim was
one that the judgment had been illegally imposed, the
petition must be treated as one under Rule 37. As such, the
court found that the petition was untimely and successive.
Although the trial court found that it did not therefore have
authority to grant relief, it addressed the claims that the
two previous convictions were erroneously admitted into
evidence and determined that the convictions had not been
court will not reverse a denial of postconviction relief
unless the trial court's findings are clearly erroneous.
Fischer v. State, 2017 Ark. 338, 532 S.W.3d 40. 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 committed. Id.
Questions of law are reviewed de novo. State v.
Johnson, 2010 Ark. 77, 360 S.W.3d 104. A judgment of
conviction is presumed valid. Coleman v. State, 257
Ark. 538, 518 S.W.2d 487 (1975).
Code Annotated section 16-90-111(a) provides authority to a
trial court to correct an illegal sentence at any time.
Jenkins v. State, 2017 Ark. 288, 529 S.W.3d 236. An
illegal sentence is one that is illegal on its face.
Id. 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. Id. A sentence imposed within the
maximum term prescribed by law is not illegal on its face.
time limitations on filing a petition under section
16-90-111(a)(b)(1) alleging that the sentence was imposed in
an illegal manner are superseded by Rule 37.2(c), although
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 v. State, 2017 Ark. 230.
challenged whether there was sufficient evidence regarding
two of his prior convictions and whether they were properly
admitted. These are not challenges to the facial validity of
his sentence. This court has held that to challenge the
sufficiency of the evidence in support of a trial court's
finding on the defendant's habitual-offender status, a
contemporaneous objection is necessary to preserve the issue
for review on appeal. Withers v. State, 308 Ark.
507, 825 S.W.2d 819 (1992). Like a challenge to the
sufficiency of the evidence to convict, a challenge to the
sufficiency of the evidence to support a finding on the
defendant's habitual-offender status does not implicate
the facial validity of the judgment. See Edwards v.
Kelley, 2017 Ark. 254, 526 S.W.3d 825. The Judgment and
Commitment Order reflects that White was convicted of
aggravated robbery, a class Y felony, and sentenced as a
habitual offender to seventy-five years' imprisonment,
which was within the statutory range under Arkansas Code
Annotated section 5-4-501(b)(1) (1987). This is not facially
White did not plead facts to support a finding that his
sentence was facially invalid and only raised a claim
challenging the legality of the imposition of his sentence,
his claim was one that was cognizable under Rule 37.1 and
subject to the time limitations set forth in Rule 37.2.
See Jenkins, 2017 Ark. 288, 529 S.W.3d 236. Under
Arkansas Rule of Criminal Procedure 37.2(c) (1991), a
petition claiming relief under the rule must be filed in the
circuit court within sixty days of the date the mandate
issued if the judgment was appealed. Because the petition at
issue was filed far outside of that time limitation, almost
twenty-five years, the trial court did not err in finding
that his petition was untimely.
we conclude the only timely challenge before the court was
the facial challenge to his sentence and the circuit court
did not err in denying relief, as ...