RICHARD J. JACKSON APPELLANT
STATE OF ARKANSAS APPELLEE
APPEAL FROM THE CLARK COUNTY CIRCUIT COURT [NO. 10CR-12-3]
HONORABLE GREG VARDAMAN, JUDGE.
Richard J. Jackson, pro se appellant.
Rutledge, Att'y Gen., by: Rebecca Kane, Ass't
Att'y Gen., for appellee.
KARENR. BAKER, ASSOCIATE JUSTICE.
Richard J. Jackson brings this appeal from the denial by the
trial court of his pro se "petition to reconsider and/or
modify sentence." Jackson argued in the petition, which
sought postconviction relief from his sentence,
that a hearing should be held so that he could make the trial
court aware of new and mitigating circumstances that would
affect the sentence imposed in his criminal case. The trial
court denied the relief sought on the grounds that
Jackson's petition was meritless. While Jackson did not
invoke either Arkansas Rule of Criminal Procedure 37.1 or
Arkansas Code Annotated section 16-90-111 (Repl. 2016), the
circuit court also noted that Jackson's petition was
untimely under both of those postconviction remedies.
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. We
find no error in the trial court's denial of
Jackson's petition and affirm the order.
2012, Jackson entered a plea of guilty to robbery,
kidnapping, and two counts of theft of property. He elected
to be sentenced by a jury and was sentenced as a habitual
offender to consecutive sentences totaling 1080 months'
imprisonment. The Arkansas Court of Appeals affirmed the
sentencing proceeding and remanded with instructions to
correct errors in the judgment form. Jackson v. State,
2013 Ark.App. 689. Jackson filed his petition in the trial
court to reconsider or modify the sentence in 2017.
petition in the trial court did not allege that the sentence
imposed on him was either illegal or illegally imposed, only
that he desired to present unspecified new evidence and
information in mitigation of the sentence. Generally, absent
a statute, rule, or available writ, once the trial court
enters a judgment and commitment order, jurisdiction is
transferred to the executive branch of our government.
See Richie v. State, 2009 Ark. 602, 357 S.W.3d 909.
Without an exception provided by statute, rule, or available
writ, the trial court lacks subject-matter jurisdiction to
modify the sentence. Whitney v. State, 2018 Ark. 21,
535 S.W.3d 627.
Rule of Criminal Procedure 37.1 is one of the rules that
provides an avenue for the trial court to modify a sentence
under certain circumstances provided that the petition for
relief is timely filed. See Richie, 2009 Ark. 602,
357 S.W.3d 909. 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. Here, the court of appeals'
mandate that affirmed the sentencing order in Jackson's
case was issued on December 10, 2013. Jackson filed his
petition in the trial court more than three years after the
mandate had been issued. 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 Jackson did not file
his petition within the time limit set by the Rule, he was
not entitled to relief under the Rule.
argues that he was entitled to relief under section 16-90-111
because the statute permits mitigating circumstances to be
submitted for consideration by the trial court at any time
and because he was denied effective assistance of counsel in
the trial court. With respect to the claim of ineffective
assistance of counsel, the claim should have been raised in a
timely petition under Rule 37.1. Swift v. State,
2018 Ark. 74, 540 S.W.3d 288. Moreover, the argument was not
raised below, and we do not address arguments that are raised
for the first time on appeal. Marshall v. State,
2017 Ark. 347, 532 S.W.3d 563.
section 16-90-111(a), the statute provides authority to a
trial court to correct a truly 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. 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. Fischer, 2017 Ark. 338, 532 S.W.3d 40;
Green v. State, 2016 Ark. 386, 502 S.W.3d 524. Here,
Jackson made no assertion that the sentence imposed on him
exceeded the sentence permitted under the applicable law.
Instead, Jackson argues for the first time in his brief that
section 16-90-111 permitted him to present mitigating
evidence at any time and that his attorney could have
conveyed to the court evidence in mitigation of the sentence
that he has a severe learning disability. Jackson cites no
relevant case law or persuasive authority to support his
argument that section 16-90-111 allows an unlimited
opportunity for a trial court to consider factors in
mitigation of a sentence after the sentence has been placed
into execution. This court does not consider arguments
without authority or convincing support when it is not
apparent without further research that the argument is
well-taken. Maiden v. State, 2014 Ark. 294, 438
S.W.3d 263. The allegation that counsel could have offered
mitigation evidence concerning his learning disability
constitutes an allegation of ineffective assistance of
counsel and is not cognizable as a ground for relief under
the statute. See Swift, 2018 Ark. 74, 540 S.W.3d
288. Furthermore, the allegation does not support his claim
that he is entitled under the statute to present mitigation
evidence at any time.