MOTION
FOR RULE ON CLERK TO EXTEND BRIEF TIME [GARLAND COUNTY
CIRCUIT, COURT, NO. 26CR-00-366]
OPINION
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 Burgies motion for rule on clerk wherein he
asks this court for an extension of time to file his
brief-in-chief. Therefore, Burgies 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.
Page 128
We affirmed. Burgie v. State, CR- 02-90, 2003 WL
367733 (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 Feb. 20, 2003) (unpublished per curiam).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 Courts holdings in Miller v.
Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407
(2012), and Graham v. Florida, 560 U.S. 48, 130
S.Ct. 2011, 176 L.Ed.2d 825 (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 courts
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 Burgies 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, 132 S.Ct. 2455, 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, 130 S.Ct. 2011, 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 F. 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.
Page 129
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
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