FROM THE HEMPSTEAD COUNTY CIRCUIT COURT [NO. 29CR-15-73]
HONORABLE DUNCAN CULPEPPER, JUDGE
Kenneth Stuart, pro se appellant.
Rutledge, Att'y Gen., by: Michael A. Hylden, Ass't
Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, JUDGE
Stuart appeals pro se from an order of the Hempstead County
Circuit Court denying his "petition to reconsider and/or
modify sentence." Because his motion was not timely
filed under our rules pertaining to postconviction
proceedings, and because the sentences imposed on him by the
circuit court were legal, we affirm.
pleaded guilty to multiple drug-related felony counts in
September 2016 and was sentenced to fifty years in the
Arkansas Department of Correction (ADC) with fifteen
years' suspended imposition of sentence (SIS). His
sentencing order was entered on October 24, 2016. On January
30, 2017, Stuart filed a "petition seeking the writ of
error coram nobis and/or to vacate judgment." His
petition alleged numerous deficiencies in his proceedings,
including ineffective assistance of counsel, prosecutorial
misconduct, and abuse of the circuit court's discretion.
The State responded, contending that the petition was, in
essence, a Rule 37 petition that had not been timely filed.
The circuit court agreed and entered an order dismissing
Stuart's petition without holding a
on July 20, 2017, Stuart filed a "petition to reconsider
and/or modify sentence" in the circuit court, asking the
court to reconsider or modify his sentence and to grant him a
hearing "to make the court aware of new and mitigating
circumstances to reconsider." A handwritten copy of the
same pleading was file-marked on July 24, 2017. Once again,
the State responded that Stuart's motion was untimely and
should be dismissed.
circuit court agreed and entered an order denying
Stuart's petition for reconsideration. First, the court
found that Stuart's motion was not timely, having been
filed 273 days after the entry of judgment. Second, the court
determined that it lacked jurisdiction to modify Stuart's
sentence, as more than ninety days had elapsed since the
entry of the sentence. Finally, the court found that
Stuart's sentences were legal and enforceable, and
therefore Arkansas Code Annotated section 16-90-111(a) (Repl.
2016), which allows correction of an illegal sentence at any
time, did not apply. Stuart filed a timely notice of appeal.
appeal, Stuart argues that the circuit court erred in denying
his petition under Arkansas Code Annotated section 16-90-111
because he was denied effective and adequate assistance of
counsel. Our supreme court has held that all "grounds
for postconviction relief from a sentence imposed by a
circuit court, including claims that a sentence is illegal or
was illegally imposed, " must be raised pursuant to
Arkansas Rule of Criminal Procedure 37. Bailey v.
State, 312 Ark. 180, 182, 848 S.W.2d 391, 392 (1993)
(per curiam) (A petition for postconviction relief attacking
a judgment, regardless of the label placed on it by the
petitioner, is considered pursuant to our postconviction
rule.). As such, Stuart's pleading, which was captioned
as a petition to reconsider or modify his sentence, was in
actuality a collateral attack on his conviction under Rule
37.1, regardless of its label. See Millsap v.
Kelley, 2016 Ark. 406, at 3-4 (per curiam).
permits collateral attacks upon a final conviction and appeal
by means of a postconviction challenge to determine whether a
sentence was void because it violated fundamental rights
guaranteed by the constitutions or laws of Arkansas or of the
United States. Davis v. State, 345 Ark. 161, 168, 44
S.W.3d 726, 729 (2001). Other provisions of Rule 37 govern
the time in which a petitioner may assert such a collateral
attack on his or her conviction. In particular, Rule
37.2(c)(i) provides that "if a conviction was obtained
on a plea of guilty . . . a petition claiming relief under
this rule must be filed in the appropriate circuit court
within 90 days of the date of entry of judgment."
as noted above, Stuart's sentencing order was entered on
October 24, 2016. Ninety days from that date would have been
January 22, 2017. As Stuart did not file his petition to
reconsider or modify sentence until July 20, 2017, his
posttrial collateral attack on his judgment was clearly
untimely, and the circuit court properly dismissed it.
as suggested by the State's response to Stuart's
petition, the petition could have been construed as seeking
relief pursuant to Arkansas Code Annotated section 16-
90-111(b)(1). This statute provides that a circuit court
"may reduce a sentence within ninety (90) days after the
sentence is imposed[.]" Again, however, even assuming
Stuart's July 2017 petition for modification of his
sentence was a proper plea for relief pursuant to this
statute, it was likewise untimely and was correctly
could have availed himself of section 16-90-111 only if his
sentence had been illegal. Under section 16-90-111(a),
"[a]ny circuit court, upon receipt of petition by the
aggrieved party for relief and after the notice of the relief
has been served on the prosecuting attorney, may correct
an illegal sentence at any time." (Emphasis
added.) None of Stuart's sentences were illegal, however.
pleaded guilty to eight felony counts: two Class Y felonies,
one Class A felony, four Class B felonies, and one Class C
felony. Moreover, Stuart was sentenced as a "large
habitual" offender under Arkansas Code Annotated section
5-4-501(b) (Repl. 2013), thus subjecting his sentences to
enhancements. For his Class Y felonies, Stuart could have
been sentenced to ten years to life imprisonment. Ark. Code
Ann. § 5-4-501(b)(2)(A). For his Class A felony, Stuart
was subject to a sentencing range of six to sixty years. Ark.
Code Ann. § 5-4-501(b)(2)(B). His Class B felonies were
subject to a range of five to forty ...