MOTION FOR RULE ON CLERK [PULASKI COUNTY CIRCUIT COURT,
SECOND DIVISION, NO. 60CR-05-856]
F. WYNNE, ASSOCIATE JUSTICE.
7, 2018, petitioner Xavier Redus filed in the trial court a
pro se petition to correct an illegal sentence under Arkansas
Code Annotated section 16-90-111 (Repl. 2016). The trial
court denied the petition. Redus did not timely file a notice
of appeal, and now before us is his pro se motion for rule on
clerk seeking to proceed with the appeal. As the notice of
appeal was untimely, we treat the motion as a motion for
belated appeal. Latham v. State, 2018 Ark. 44.
not consider Redus's reasons for not filing a timely
notice of appeal because it is clear from the record that
Redus's petition was wholly without merit, and he could
not prevail on appeal. Fischer v. State, 2017 Ark.
338, 532 S.W.3d 40 (The merits of a motion for rule on clerk
to file a record belatedly were not considered as it was
clear from the record the petitioner could not prevail on
appeal because he had failed to argue that his sentence was
illegal on its face pursuant to section 16-90-111.).
Accordingly, Redus's motion to proceed with an appeal is
court will not reverse the trial court's decision
granting or denying postconviction relief unless it is
clearly erroneous. Fischer, 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. An appeal
from an order that denied a petition for postconviction
relief, including a petition filed under section 16-90-111,
will not be permitted to go forward when it is clear that
there would be no merit to the appeal. Gardner v.
State, 2017 Ark. 230; see also Justus v. State,
2012 Ark. 91.
2005, Redus entered a negotiated plea of guilty to eight
counts of aggravated robbery and eight counts of theft of
property, for which a cumulative sentence of 336 months'
imprisonment was imposed. In 2011, Redus filed in the trial
court a petition to correct an illegal sentence under section
16-90-111 (Repl. 2006). He contended, among other
allegations, that his sentence was illegal because it
exceeded the presumptive sentences for the crimes of which he
was convicted, the habitual-offender enhancement was not
properly applied to his sentence, and he was denied effective
assistance of counsel. The trial court denied the petition,
and Redus appealed. We dismissed Redus's appeal from the
order because there was no ground stated in the petition that
established that the sentence imposed in 2005 was illegal.
Redus v. State, 2013 Ark. 9 (per curiam).
2018 petition, Redus again claimed that his sentence exceeded
the presumptive sentences, the habitual-offender enhancement
was misapplied to his sentence, and he was denied effective
assistance of counsel. He also argued that the State did not
abide by the sentencing guidelines and that the issue of
whether he was a habitual offender should have been decided
by a jury.
16-90-111(a) provides authority to a trial court to correct
an 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. Jackson v. State, 2018
Ark. 209, 549 S.W.3d 346. 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. Swift v. State, 2018
Ark. 74, 540 S.W.3d 288. Sentencing is entirely a matter of
statute in Arkansas, and a sentence is illegal when it
exceeds the statutory maximum, as set out by statute, for the
offense for which the defendant was convicted.
Fischer, 2017 Ark. 338, 532 S.W.3d 40.
petitioner seeking relief under section 16-90-111(a) carries
the burden to demonstrate that his or her sentence was
illegal. Latham, 2018 Ark. 44. Therefore, Redus was
entitled to no relief under section 16-90-111 unless he
established that the judgment in his case was illegal on its
face. This court has held that any claim that the sentence
was imposed in an illegal manner, as opposed to a claim that
the sentence is facially illegal, is governed by the time
limitations set out in Arkansas Rule of Criminal Procedure
37.2(c) (2017). See Stewart v. State, 2018 Ark. 166,
546 S.W.3d 472. Because Redus's allegations in this
petition went behind the face of the judgment and did not
implicate the facial validity of the judgment, he was
obligated under Rule 37.2(c)(1) to pursue those claims within
ninety days of the date that the judgment was entered
following his guilty plea in 2005. The time limitations
imposed in Rule 37.2(c) are mandatory. Jackson, 2018
Ark. 209, 549 S.W.3d 346. If the time for relief under Rule
37.2 has expired, section 16-90-111 provides no relief for
claims that a sentence was illegally imposed; that is, a
petition under section 16-90-111 is not a substitute for
filing a timely petition under Rule 37.1. See
Stewart, 2018 Ark. 166, 546 S.W.3d 472.
this court dismissed Redus's appeal from the petition he
filed in 2011, it was noted that Redus had pleaded guilty to
eight counts of aggravated robbery, a Y felony. See
Ark. Code Ann. § 5-12-103 (Repl. 2005). He was sentenced
as a habitual offender on each count to 336 months'
imprisonment, with all sentences to run concurrently. The
statutory range for a habitual offender on each count was ten
years to life. See Ark. Code Ann. §
5-4-501(b)(2)(A) (Repl. 1997). He also pleaded guilty to
eight counts of theft of property, an A misdemeanor under
Arkansas Code Annotated section 5-36-103(b)(4) (Supp. 2003),
for which he received 12 months' imprisonment. The
sentence for an A misdemeanor may not exceed one year.
See Ark. Code Ann. § 5-4-401(b)(1) (Repl.
1997). The sentences for the misdemeanors were merged with
the sentences for aggravated robbery, as required by Arkansas
Code Annotated section 5-4-403(c). Thus, we have already held
that Redus's sentence was clearly within the prescribed
statutory range and was not illegal. Redus, 2013
Ark. 9. The trial court's denial of this most recent
claim for relief under section 16-90-111 was not error.
treated as a motion for belated appeal and denied.
Josephine Linker Hart, Justice, dissenting.
dissent for the reasons outlined in Gray v. State,
2018 Ark. 79, 540 S.W.3d 658 (Hart, J., dissenting). The only
matter properly before us at this juncture is Mr. Redus's
motion for belated appeal. This court does not yet ...