MOTION TO FILE A SUPPLEMENTAL ADDENDUM AND SUBSTITUTED BRIEF;
MOTION FOR COPY OF RECORD AT PUBLIC EXPENSE; MOTION FOR RULE
ON CLERK; MOTION TO FILE SUBSTITUED BRIEF AND SUPPLEMENTAL
ADDEDUM AND REQUEST TO WITHDRAW PENDING MOTIONS [LINCOLN
COUNTY CIRCUIT COURT, NO. 40CV-18-129]
F. WYNNE, ASSOCIATE JUSTICE
Eric Johnson appeals the circuit court's dismissal of his
pro se petition for a writ of habeas corpus. In 2011, Johnson
pleaded guilty to attempted first-degree murder and
first-degree battery and was sentenced to an aggregate term
of 540 months' imprisonment. Johnson alleged in his
habeas petition that his sentence was illegal because the
trial court failed to pronounce sentence in open court at the
conclusion of the plea hearing in violation of Arkansas Code
Annotated section 16-90-106(d) (Repl. 2006). Johnson's
brief-in-chief was tendered to this court, but it was not
filed because the addendum lacked a file-marked copy of his
notice of appeal and the habeas petition that he had filed in
circuit court. Thereafter, Johnson filed pro se motions to
file a supplemental addendum and substituted brief, for a
copy of the record at public expense, and for rule on clerk
to file the tendered brief-in-chief. Johnson subsequently
obtained a copy of the record that contained a file-marked
copy of his habeas petition and notice of appeal and tendered
a brief with a compliant supplemental addendum, together with
a motion to file the substituted brief and supplemental
addendum; he also asked that his previous motions be
appeal from an order that denied a petition for
postconviction relief, including a petition for writ of
habeas corpus, will not be permitted to go forward when it is
clear from the record that the appellant could not prevail.
Love v. Kelley, 2018 Ark. 206, 548 S.W.3d 145.
Because Johnson failed to demonstrate that the sentence was
illegal on its face or the trial court lacked jurisdiction,
he cannot prevail. We therefore dismiss the appeal, which
renders his motions moot.
circuit court's decision on a petition for writ of habeas
corpus will be upheld unless it is clearly erroneous.
Anderson v. Kelley, 2019 Ark. 6, 564 S.W.3d 516. 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.
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. Philyaw v. Kelley, 2015
Ark. 465, 477 S.W.3d 503. Unless the 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. Fields v.
Hobbs, 2013 Ark. 416. This court views an issue of a
void or illegal sentence as being an issue of subject-matter
jurisdiction. Donaldson v. State, 370 Ark. 3, 257
S.W.3d 74 (2007). A sentence is void or illegal when the
trial court lacks authority to impose it. Id. In
Arkansas, sentencing is entirely a matter of statute, and
this court has consistently held that sentencing shall not be
other than in accordance with the statute in effect at the
time of the commission of the crime. Philyaw, 2015
Ark. 465, 477 S.W.3d 503. When the law does not authorize the
particular sentence pronounced by a trial court, that
sentence is unauthorized and illegal. Id.
habeas corpus proceeding does not afford a prisoner an
opportunity to retry his case. Johnson v. State,
2018 Ark. 42, 538 S.W.3d 819. Claims of error by the trial
court that accepted a guilty plea are not within the purview
of the remedy because the writ will not be issued to correct
errors or irregularities that occurred in a guilty-plea
proceeding. Id. Unless a habeas petitioner can
demonstrate that a sentence is illegal on the face of the
judgment-and-commitment order, there is no showing that the
trial court lacked jurisdiction to impose it. Edwards v.
Kelley, 2017 Ark. 254, 526 S.W.3d 825.
to a plea hearing for failure to follow the mandates of
section 16-90-106 must be raised at the time of the hearing
before it will be considered by this court on appeal.
Willis v. State, 299 Ark. 356, 772 S.W.2d 584
(1989); Goff v. State, 341 Ark. 567, 19 S.W.3d 579
(2000). This is because an error in a plea proceeding is not
a jurisdictional defect. See Noble v. Norris, 368
Ark. 69, 243 S.W.3d 260 (2006) (Failure to follow the
statutory procedure in the exercise of a court's
authority constitutes reversible error but does not deprive
the court of jurisdiction.). A violation of section 16-90-106
does not implicate the trial court's jurisdiction or
render a sentence illegal.
face of the order of conviction demonstrates that Johnson was
convicted as a habitual offender under Arkansas Code
Annotated section 5-4-501(a)(1) (Repl. 2006), of a Class A
felony for attempted murder, and a Class B felony for
battery. Johnson was sentenced to concurrent terms of
imprisonment of 540 months for attempted murder and 340
months for battery. Under the habitual-offender statute cited
above, a Class A felony carries a maximum sentence of fifty
years' imprisonment, and a Class B felony carries a
maximum sentence of thirty years' imprisonment.
See Ark. Code Ann. § 5-4- 501(a)(1)(C)(2).
Johnson's concurrent sentences fell within the maximum
sentences allowed under the law at the time the offenses were
committed. In sum, Johnson's sentences are not illegal on
the face of the judgment, and there is no showing that the
trial court lacked jurisdiction to impose the sentences
authorized under the law. Edwards, 2017 Ark. 254,
526 S.W.3d 825.
dismissed; motions moot.
Josephine Linker Hart, Justice, dissenting.
dissent for the reasons set forth in Stephenson v.
Kelley, 2018 Ark. 143, 544 S.W.3d 44 (Hart, J.,
dissenting). As set forth therein, the majority's
conception of habeas corpus is dated, senselessly narrow, and
the majority's suggestion that, because the sentence to
which he pled guilty falls within the acceptable statutory
sentencing range, Johnson can therefore never prevail on
habeas grounds, is frustrating. It is true that the term of
years contained in the sentence on Johnson's commitment
order is within the acceptable range pursuant to Ark. Code
Ann. § 5-4-501(a)(1). Ark. Code Ann. §
5-4-501(a)(1) allows for a sentence with an expanded term of
years for a felony committed by an individual who has
previously been convicted of between one and four felonies.
Indeed, the transcript from Johnson's plea hearing
indicates his acknowledgement of one prior conviction from
Louisiana for illegal possession of stolen things and one
prior conviction from Arkansas for second-degree murder.
These prior convictions would support his expanded sentence
of forty-five (with thirty concurrent) years on the present
the present claim Johnson asserts in his habeas corpus
petition has nothing to do with the application of Ark. Code
Ann. § 5-4-501(a)(1) to his sentence's term of
years. Instead, Johnson takes issue with the apparent
application of Ark. Code Ann. § 5-4-501(d), a separate
provision of the habitual-offender statute that precludes
consideration of parole eligibility in certain cases. Ark.
Code Ann. § 5-4-501(d) provides that one who has
previously been convicted of two or more felonies involving
violence and is ...