FROM THE LEE COUNTY CIRCUIT COURT [NO. 39CV-17-139] HONORABLE
CHRISTOPHER W. MORLEDGE, JUDGE.
Cortinez Law Firm, by: Robert R. Cortinez, Sr., for
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
F. WYNNE, ASSOCIATE JUSTICE.
Pelletier appeals from an order of the Lee County Circuit
Court denying his petition for writ of habeas corpus. He
argues on appeal that the circuit court erred in denying the
petition because his convictions on thirty counts of
distributing, possessing, or viewing matter depicting
sexually explicit conduct involving a child violate the
prohibition against double jeopardy. We affirm.
August 14, 2012, appellant, who lived in Texas, sent an email
with an attachment containing thirty photographs depicting
child pornography to an undercover police officer in Faulkner
County, Arkansas. He was charged in the Faulkner County
Circuit Court with thirty counts of distributing, possessing,
or viewing matter depicting sexually explicit conduct
involving a child, in violation of Arkansas Code Annotated
section 5-27-602 (Repl. 2013). Appellant and the State
subsequently negotiated a plea agreement under which
appellant would plead guilty to all thirty counts of
violating section 5-27-602. In exchange, he would be
sentenced to ten years' imprisonment on six of the counts
to be served consecutively, with the sentences on the
remaining counts to run concurrently, for a total of sixty
years' imprisonment. Appellant pled guilty, and he was
sentenced in accordance with the negotiated plea agreement.
filed a petition for writ of error coram nobis in the
Faulkner County Circuit Court in June 2014. In the petition,
he alleged that he had been illegally sentenced because he
had committed only one illegal act. The circuit court denied
the petition. On appeal, this court held that appellant's
claim was not cognizable in a petition for writ of error
coram nobis. Pelletier v. State, 2015 Ark. 432, 474
S.W.3d 500. Appellant then filed a petition for a writ of
habeas corpus in the United States District Court for the
Eastern District of Arkansas. A federal magistrate determined
that appellant's habeas petition was untimely. The
magistrate's findings were adopted by the federal
then filed a petition for writ of habeas corpus in the Lee
County Circuit Court on October 23, 2017. In the petition, he
alleges that his convictions on twenty-nine of the thirty
counts violate double jeopardy because he sent only one email
with one attachment. In an order entered on January 8, 2018,
the circuit court found that there was not probable cause to
issue a writ based on the face of the pleadings. This appeal
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. See Noble v. Norris,
368 Ark. 69, 243 S.W.3d 260 (2006). Unless a 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. See
id. The petitioner must plead either the facial
invalidity or the lack of jurisdiction and make a
"showing, by affidavit or other evidence, [of] probable
cause to believe" that he or she is being illegally
detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl.
2016). Moreover, a habeas proceeding does not afford a
prisoner an opportunity to retry his or her case, and it is
not a substitute for direct appeal or postconviction relief.
See Noble, 368 Ark. 69, 243 S.W.3d 260. A hearing is
not required if the petition does not allege either of the
bases of relief proper in a habeas proceeding, and even if a
cognizable claim is made, the writ does not have to be issued
unless probable cause is shown. See id. A 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.
State contends that appellant's claim is not one that is
recognized in a habeas proceeding. We disagree. This court
has recognized that some claims of double jeopardy are
cognizable in a habeas proceeding, as detention for an
illegal period of time is precisely what a writ of habeas
corpus is designed to correct. See Quezada v. Hobbs,
2014 Ark. 396, 441 S.W.3d 910 (per curiam). Appellant argues
that his sixty-year sentence is illegal because he could only
have been found guilty of one count of violating section
5-27-602. A meritorious claim of an illegal sentence falls
within the purview of the habeas remedy. Morgan v.
State, 2017 Ark. 57, 510 S.W.3d 253 (reviewing whether a
defendant was illegally sentenced as a habitual offender).
This court views an allegation of a void or illegal sentence
as being an issue of subject-matter jurisdiction.
Id. We hold that appellant's claim falls within
the bounds of a habeas action, and the issue before this
court is whether the claim has merit.
argues on appeal that the circuit court erred by denying his
petition because his sentence violates the double-jeopardy
clauses of the Arkansas Constitution and the United States
Constitution, as well as Arkansas Code Annotated section
5-1-110, which sets out conduct constituting more than one
offense. The Supreme Court of the United States has stated
that "the question under the Double Jeopardy Clause
whether punishments are multiple is essentially one of
legislative intent." Ohio v. Johnson, 467 U.S.
493, 499 (1984). That Court has also stated that "[w]ith
respect to cumulative sentences imposed in a single trial,
the Double Jeopardy Clause does no more than prevent the
sentencing court from prescribing greater punishment than the
legislature intended." Missouri v. Hunter, 459
U.S. 359, 366 (1983). Both the Supreme Court of the United
States and this court have made it clear that it is the
legislature that determines crimes, fixes punishments, and
has the authority to impose cumulative punishments for the
same conduct. Rowbottom v. State, 341 Ark. 33, 38-
39, 13 S.W.3d 904, 907 (2007).
Code Annotated section 5-27-602 (Repl. 2013) states, in
pertinent part, as follows:
(a) A person commits distributing, possessing, or viewing of
matter depicting sexually explicit conduct involving a child
if the person knowingly:
(1) Receives for the purpose of selling or knowingly sells,
procures, manufactures, gives, provides, lends, trades,
mails, delivers, transfers, publishes, distributes,
circulates, disseminates, presents, exhibits, advertises,
offers, or agrees to offer through any means, including the
Internet, any photograph, film, videotape, computer program
or file, video game, or any other reproduction or
reconstruction that depicts a child or incorporates the image
of a child engaging in sexually explicit conduct; or
(2) Possesses or views through any means, including on the
Internet, any photograph, film, videotape, computer program
or file, computer-generated image, video game, or any other
reproduction that depicts a child or incorporates the ...