Rehearing Denied August 1, 2019
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 SUBSTITUTED BRIEF AND SUPPLEMENTAL
ADDENDUM AND REQUEST TO WITHDRAW PENDING MOTIONS [LINCOLN
COUNTY CIRCUIT COURT, NO. 40CV-18-129]
F. WYNNE, Associate Justice
Appellant Eric Johnson appeals the circuit courts 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). Johnsons
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 courts 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.
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, 2013 WL 5775566. 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.
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.
Challenges 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 courts
authority constitutes reversible error but does not deprive
the court of jurisdiction.). A violation of section 16-90-106
does not implicate the trial courts jurisdiction or render a
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). Johnsons concurrent
sentences fell within the maximum sentences allowed under the
law at the time the offenses were committed. In sum,