ROGER D. SIMS APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CV-17-353]
HONORABLE JODI RAINES DENNIS, JUDGE
D. Sims, pro se appellant.
Rutledge, Att'y Gen., by: Michael A. Hylden, for
K. WOOD, ASSOCIATE JUSTICE
Roger D. Sims appeals the dismissal of his petition for writ
of habeas corpus. Sims raises two grounds for reversal of the
order-that the circuit court erred in rejecting his claim
that he was subject to double jeopardy and that the sentence
imposed on him was illegal. We find no error and affirm the
2001, Sims pleaded guilty to rape and incest in the Craighead
County Circuit Court and was sentenced to concurrent terms of
imprisonment in the Arkansas Department of Correction (ADC)
of 420 months for rape and 120 months for incest. In 2017,
Sims, who is incarcerated in Texas, filed his habeas petition
in the Jefferson County Circuit Court, that is, in the county
where the headquarters of the ADC and its director are
located. See Hundley v. Hobbs, 2015 Ark.
70, at 7-8, 456 S.W.3d 755.
Grounds for Issuance of the Writ
of habeas corpus is proper when a judgment of conviction is
invalid on its face or when a circuit court lacks
jurisdiction over the cause. Philyaw v. Kelley, 2015
Ark. 465, 477 S.W.3d 503. Jurisdiction is the power of the
court to hear and determine the subject matter in
controversy. Baker v. Norris, 369 Ark. 405, 255
S.W.3d 466 (2007). Under our statute, a petitioner for the
writ who does not allege his actual innocence and proceed
under Act 1780 of 2001 must plead either the facial
invalidity of the judgment or the lack of jurisdiction by the
trial court and make a showing by affidavit or other evidence
of probable cause to believe that he is being illegally
detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl.
2016). Unless the petitioner can show that the trial court
lacked jurisdiction or that the commitment was invalid on its
face, there is no basis for a finding that a writ of habeas
corpus should issue. Fields v. Hobbs, 2013 Ark. 416.
Standard of Review
circuit court's decision on a petition for writ of habeas
corpus will be upheld unless it is clearly erroneous.
Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A
decision 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 made. Id.
argues that his sentence was rendered illegal because he was
found guilty of both rape and incest. We have held that,
while some double-jeopardy claims are cognizable in habeas
corpus proceedings, when the petitioner does not show that on
the face of the commitment order there was an illegal
sentence imposed, the claim does not implicate the
jurisdiction of the court to hear the case, and the claim is
not one that is cognizable. Edwards v. Kelley, 2017
Ark. 254, 526 S.W.3d 825. Sims did not make that showing
because the face of the judgment does not establish that the
two offenses are the same offense.
purposes of double jeopardy, whether two offenses are the
"same offense" depends on whether each statutory
provision requires proof of a fact that the other does not.
Under this criteria, rape and incest require the satisfaction
of different elements and thus are separate offenses.
Moreover, the issue is one that could have been raised before
Sims entered his plea of guilty to rape and incest. See
id. Sims did not meet his ...