MOTION
FOR RULE ON CLERK TO EXTEND BRIEF TIME [GARLAND COUNTY
CIRCUIT COURT, NO. 26CR-00-366].
KAREN
R. BAKER, ASSOCIATE JUSTICE
Appellant
Eric Burgie appeals from the denial of his pro se petition to
correct an illegal sentence pursuant to Arkansas Code
Annotated section 16-90-111 (Repl. 2016). Pending before this
court is Burgie's motion for rule on clerk wherein he
asks this court for an extension of time to file his
brief-in-chief. Therefore, Burgie's motion for rule on
clerk is treated as a motion for an extension of time to file
his brief-in-chief.
In
2001, Burgie was convicted of capital murder and aggravated
robbery and was sentenced to life imprisonment. We affirmed.
Burgie v. State, CR-02-90 (Ark. Feb. 20, 2003)
(unpublished per curiam). In his petition to correct an
illegal sentence, Burgie alleged that he was eighteen when he
committed the crimes for which he had been convicted and that
his mandatory sentence of life imprisonment should be set
aside pursuant to the United States Supreme Court's
holdings in Miller v. Alabama, 567 U.S. 460 (2012),
and Graham v. Florida, 560 U.S. 48 (2010). Burgie
argues that Graham should apply to his conviction
because his murder charge was not based on an actual intent
to murder the victim but rather on an intent to aid in the
commission of an aggravated robbery.
An
appeal from an order that denied a petition for
postconviction relief, including a petition under section
16-90-111, will not be permitted to go forward when it is
clear that there is no merit to the appeal. Jackson v.
State, 2018 Ark. 291, 558 S.W.3d 383. The trial
court's decision to deny relief under section 16-90-111
will not be overturned unless that decision is clearly
erroneous. Id. Here, it is apparent from the record
that the denial of relief was not clearly erroneous and that
Burgie cannot prevail on appeal. Therefore, the appeal is
dismissed, which renders Burgie's motion moot.
Section
16-90-111 provides authority to a trial court to correct an
illegal sentence at any time. Redus v. State, 2019
Ark. 44, 566 S.W.3d 469. An illegal sentence is one that is
illegal on its face. Id. 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.
Id. Burgie contends that his sentence is illegal on
its face because he was eighteen when he committed the crimes
of capital murder and aggravated robbery.
In
Miller, 567 U.S. 460, the United States Supreme
Court concluded that mandatory life-without-parole sentences
for juveniles under the age of eighteen violate the Eighth
Amendment. Likewise, in Graham, 560 U.S. 48, the
Court concluded that a life sentence for a juvenile under the
age of eighteen who commits a nonhomicide offense violates
the Eighth Amendment.
The
United States Supreme Court has not extended its holdings to
offenders that were eighteen when the crime was committed,
and federal courts that have addressed this issue have
soundly rejected the application of the reasoning in
Miller and Graham to claims raised by
petitioners who were eighteen or older when their crimes were
committed.[1] See Wright v. United States, 902
F.3d 868 (8th Cir. 2018) (relief from the imposition of a
life sentence denied to a petitioner whose conspiratorial
conduct began as a juvenile but extended into his adult
years); Ong Vue v. Henke, 746 Fed.Appx. 780 (10th
Cir. 2018) (The constitutional protections established in
Miller and Graham have never been extended
to persons who were at least eighteen when the crimes were
committed.). In general, society has drawn a line between a
juvenile and an adult at the age of eighteen, which the
United States Supreme Court has relied on for sentencing
purposes.
Under
Arkansas law, capital murder carries two possible
sentences--death or life without parole. Ark. Code Ann.
§ 5-10-101(c) (Repl. 1997). Because Burgie was an adult
when he committed capital murder, the sentence of life
imprisonment was not illegal. Redus, 2019 Ark. 44,
566 S.W.3d 469.
Appeal
dismissed; motion moot.
Josephine Linker Hart, Justice, dissenting.
Until
the briefing is complete, all this court has pending before
it is Mr. Burgie's motion for an extension of time to
file his brief. Because he has not yet filed his brief, his
appeal is not perfected, and we do not have jurisdiction to
decide his appeal on the merits.
I note
further that while Mr. Burgie's argument would require an
extension of the holding in Miller v. Alabama, 567
U.S. 460 (2012), the law in this area is by no means so
settled as to make such an argument frivolous. Recall that
this court rejected the very argument that carried the day in
Miller in Jackson v. Norris, 2011 Ark. 49,
378 S.W.3d 103, cert. granted, 565 U.S. 1013 (2011).
This ...