PETITIONS TO REINVEST JURISDICTION IN THE TRIAL COURT TO
CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS AND TO
RECALL THE MANDATE AND FOR LEAVE TO PROCEED IN FORMA PAUPERIS
[PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION, NO.
COURTNEY HUDSON GOODSON, ASSOCIATE JUSTICE.
Marlon Glenn Hallman asks this court to reinvest jurisdiction
in the trial court so that he may proceed with a petition for
writ of error coram nobis and to recall the mandate in his
direct appeal. Hallman contends that his conviction for
kidnapping was invalid and the sentence on that conviction
was an illegal sentence that the trial court was without
authority to impose. Hallman also filed a petition requesting
permission to proceed as a pauper in the matter. Although
Hallman's sentence for kidnapping is illegal and void, we
deny his request to proceed with a petition for the writ, and
we do not reinvest jurisdiction in the trial court or recall
the mandate. However, we grant a part of the relief that
Hallman requests by holding that the judgment is void to the
extent that it imposed a sentence for the charge of
kidnapping. The petition for leave to proceed as a pauper is
and his codefendants, Tywanna Faye Martin and Henry Jewel
Harris, were tried together on charges that the three of
them, along with a fourth codefendant who was tried
separately, had kidnapped Calvin Earl Smith from a restaurant
in Little Rock, beat him, and then drowned him in the
Arkansas River. Hallman and Martin were both convicted of
capital murder and kidnapping, and each received sentences of
life imprisonment without parole for capital murder and
twenty years for kidnapping. Hallman and Martin filed a joint
appeal, and this court affirmed the judgment. Hallman v.
State, 264 Ark. 900, 575 S.W.2d 688 (1979).
instant petition to reinvest jurisdiction, Hallman would have
this court allow him to file a petition in the trial court
seeking the writ of error coram nobis, or recall the mandate
so that the trial court might conduct new sentencing
proceedings, based on his claim that his kidnapping sentence
was illegal and the judgment was facially invalid as to that
conviction. He appears to wish this court to issue a new
mandate that would affirm the judgment only for the murder
conviction and void the judgment as to the kidnapping
indicates, correctly, that this court has previously
considered this same issue concerning his codefendant
Martin's request to proceed with a petition under
Arkansas Rule of Criminal Procedure 37.1 (Repl. 1977 &
Supp. 1979). Martin v. State, 277 Ark. 175, 639
S.W.2d 738 (1982) (per curiam). In that case, we determined
that the lesser offense was subsumed by the capital-murder
conviction, and we set aside the kidnapping conviction as
void. Id. Hallman cites Ward v. State, 2016
Ark. 8, 479 S.W.3d 9 (per curiam) in support of his position
that the writ should issue if the petitioner shows that the
trial court acted outside its subject-matter jurisdiction.
has misconstrued that case, in that it affirmed the denial of
a petition for the writ. The writ will lie only to correct
errors of fact and not errors of law, and the appropriate
remedy under the writ is a new trial. See Smith v.
State, 200 Ark. 767, 140 S.W.2d 675 (1940). The
appellant in Ward had raised the issue of an illegal
sentence for the first time on appeal, and this court
addressed the issue because it was one to be treated as a
question of subject-matter jurisdiction. 2016 Ark. 8, 479
S.W.3d 9. This court may address a question of an illegal
sentence sua sponte. Harness v. State, 352 Ark. 335,
101 S.W.3d 235 (2003). Such an issue, which is jurisdictional
in nature, can be addressed at any time. Bell v.
State, 2017 Ark. 231, 522 S.W.3d 788. Hallman has not
stated a basis that would justify coram nobis proceedings in
the trial court, or even shown a need for resentencing
proceedings. He has, however, demonstrated that the judgment,
to the extent that it reflects his conviction for kidnapping,
is facially invalid.
the State does not directly concede the point, it
acknowledges in its brief that this court held in
Martin that the applicable statute-which, despite
the lack of an appropriate concession, is precisely the same
statute that is applicable in this case-did not authorize the
trial court to sentence the defendant for both kidnapping and
capital murder. 277 Ark. 175, 639 S.W.2d 738. As we
explained in Martin, when a criminal offense by
definition includes a lesser offense, a conviction cannot be
had for both offenses under Arkansas Statutes Annotated
section 41-105(1)(a) (Repl.1977). Id. at 176, 639
S.W.2d at 739 (citing Swaite v. State, 272 Ark. 128,
612 S.W.2d 307 (1981)). This court has an obligation to
correct an apparent illegal sentence. See Smith v.
Kelley, 2016 Ark. 307. Hallman's conviction for
kidnapping is set aside as void, although the conviction and
sentence for capital murder is not disturbed.
State notes in its brief, Hallman's desire to have the
trial court correct the judgment filed in that court to
reflect that his kidnapping conviction is void is one that he
may pursue more directly through a petition under Arkansas
Code Annotated section 16-90-111 (Repl. 2016). He may do so
without this court reinvesting jurisdiction in the trial
court to do so or recalling the mandate in his direct appeal.
The general rule is that if the original sentence is illegal,
even though partially executed, the sentencing court may
correct it. Bangs v. State, 310 Ark. 235, 835 S.W.2d
294 (1992). In addition, section 16-90-111 specifically
states that illegal sentences may be corrected at any time.
Id. We need not defer to the trial court, as the
State suggests, to make the determination that the sentence
is illegal, however. Whether the judgment is facially illegal
is a matter of law, and it is not a question of fact best
resolved through the trial court's determination.
to reinvest jurisdiction and to recall the mandate denied;
kidnapping sentence void; petition for leave to proceed in
forma pauperis moot.
The legislature later amended the
controlling statutes to authorize sentencing on both the
charged felony and the underlying felony. See Ark.
Code Ann. § 5-1-110(d)(1)(A) (Repl. 2013); Walker v.
State, 353 Ark. 12, 110 S.W.3d 752 (2003).
The State argues that a lack of
diligence on Hallman's part is sufficient reason to deny
Hallman coram nobis relief. As noted, the relief sought here
is not relief appropriate for issuance of the writ, where
diligence is a factor. As this court noted in
Martin, the claim Hallman makes in this case, that
his sentence is illegal, is a claim that may be considered by
this court at any time through a request for postconviction
relief. 277 Ark. 175, 639 S.W.2d 738. The rules of procedure
applicable to Hallman's conviction require the petitioner
to request permission from the court before proceeding in the
trial court, but there is no time limit when the relief
alleged would render the judgment void, as it does here. Ark.
R. Crim. P. 37.2(c) (Repl. 1977 & Supp. 1979). As
previously noted, this type of issue may be addressed by this
court at any time ...