MOTION FOR APPOINTMENT OF COUNSEL [INDEPENDENCE COUNTY
CIRCUIT COURT, NO. 32CR-04-277]
R. BAKER, ASSOCIATE JUSTICE
Brian Keith Byrne brings this appeal from the denial and
dismissal by the circuit court of his pro se petition for
reduction of sentence pursuant to Arkansas Code Annotated
section 16-90-111 (Repl. 2016). Now before us is Byrne's
motion asking that counsel be appointed to represent him on
appeal. As there was clearly no ground stated in the petition
on which relief could be granted under the statute, the
appeal is dismissed, and the motion is moot. 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 is no
merit to the appeal. Gardner v. State, 2017 Ark.
2005, Byrne entered a plea of guilty to rape and was
sentenced to a term of 240 months' imprisonment. He filed
the petition for reduction of the sentence in July 2018. He
argued that the reduction was merited because he had caused
no trouble while incarcerated, he had already served a term
sufficient to pay for his crime, and prior to his
incarceration, he had served in the military, worked for
NASA, and attended college.
regard to claims pursuant to Arkansas Code Annotated section
16-90-111, a circuit court's decision to deny relief will
not be overturned unless that decision is clearly erroneous.
Green v. State, 2017 Ark. 361, 533 S.W.3d 81. 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. Fischer v.
State, 2017 Ark. 338, 532 S.W.3d 40.
time limitations for filing a petition under section
16-90-111 alleging that the sentence was imposed in an
illegal manner are superseded by Arkansas Rule of Criminal
Procedure 37.2(c), and when a petition under the statute has
been filed far beyond the expiration of those time
limitations, as it was here,  the circuit court has authority
to grant relief under the statute only if the sentence
imposed was illegal. Id. Under section 16-90-111, a
sentence is illegal when it is illegal on its face.
Anderson v. State, 2017 Ark. 357, 533 S.W.3d 64. A
sentence is illegal on its face when it is void because it is
beyond the circuit court's authority to impose and gives
rise to a question of subject-matter jurisdiction.
Jenkins v. State, 2017 Ark. 288, 529 S.W.3d 236.
Byrne did not contend that the 2005 sentence was illegal on
its face or illegally imposed. He asserted only that his
sentence should be reduced on the basis of his good conduct
while incarcerated, the length of time already served, and
his history of good conduct prior to his incarceration. The
assertions were not within the purview of the statute that
pertains only to challenges to a sentence based on its
legality or the validity of its imposition. Stewart v.
State, 2018 Ark. 166, 546 S.W.3d 472 (The petitioner was
entitled to no relief under section 16-90-111 because the
petition did not question either the legality or the validity
of the sentence imposed.). A challenge to a sentence on the
ground that the petitioner has served enough time to atone
for his crime or that his conduct merits a reduction of
sentence attacks the execution of the sentence rather than
the validity of the sentence imposed by the trial court.
See Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23
dismissed; motion moot.
Special Justice Martha McKenzie Hill joins in this opinion.
C.J., not participating.
Pursuant to Rule 37.2(c)(i), if a
conviction was obtained on a plea of guilty. . . and
[petitioner] did not appeal the judgment of conviction, a
petition claiming relief under this rule must be filed in the
appropriate circuit court within ninety (90) days of the date
of entry of judgment. Byrne filed his section 16-90-111
petition in 2018, which ...