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Scherrer v. State

Supreme Court of Arkansas

October 10, 2019

Jimmy SCHERRER, Appellant
v.
STATE of Arkansas, Appellee

Page 244

          APPEAL FROM THE DESHA COUNTY CIRCUIT COURT [NO. 21ACR-85-36], HONORABLE STEVEN R. PORCH, JUDGE

          Jimmy Scherrer, pro se appellant.

         Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.

         OPINION

         JOHN DAN KEMP, Chief Justice

          Appellant Jimmy Lee Scherrer appeals from an order of the circuit court denying his pro se motion to vacate his amended sentencing order entered under the Fair Sentencing of Minors Act of 2017 (FSMA or the "Act").[1] We reverse the circuit court’s order and remand for resentencing in accordance with our decision in Harris v. State, 2018 Ark. 179, 547 S.W.3d 64.

         In 1986, Scherrer was convicted of the capital murder of Debbie Watts. He was sixteen years old at the time of the crime.[2] The State waived the death penalty, and Scherrer received a mandatory sentence of life imprisonment without parole. See Ark. Stat. Ann. � 41-1501(3) (Supp. 1985) (stating that capital murder is punishable by death or life imprisonment without parole). His conviction and sentence were affirmed on appeal. Scherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988).

         In Miller v. Alabama, and the companion case from Arkansas, Jackson v. Hobbs, the Supreme Court of the United States held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." 567 U.S. 460, 479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The Court further held that defendants who committed homicide crimes as juveniles and faced a sentence of life without parole were entitled to a sentencing hearing that would permit a judge or jury to consider the individual characteristics of the defendant and the individual circumstances of the crime as mitigating factors for a lesser sentence. Id. at 489, 132 S.Ct. 2455.

Page 245

          On remand from the Supreme Court in Jackson, we granted habeas relief and remanded the case to the circuit court for a resentencing hearing at which Jackson could present Miller evidence for consideration. See Jackson v. Norris, 2013 Ark. 175, 426 S.W.3d 906. We held that Jackson’s sentence must fall within the statutory discretionary sentencing range for a Class Y felony, which is ten to forty years or life. Id., 426 S.W.3d 906.[3]

          Following the Supreme Court’s decision in Miller and this court’s decision in Jackson on remand, Scherrer petitioned for writ of habeas corpus in the Lincoln County Circuit Court. The circuit court issued the writ, vacated Scherrer’s mandatory sentence of life without parole, and remanded the case to the Desha County Circuit Court for resentencing. Before Scherrer’s resentencing hearing was held, the Arkansas General Assembly passed the FSMA. The Act, which became effective on March 20, 2017, eliminated life without parole as a sentencing option for juvenile offenders and extended parole eligibility to juvenile offenders. Citing the FSMA, the circuit court "discontinued" the resentencing hearing. In an amended sentencing order entered on June 1, 2017, the circuit court sentenced Scherrer to life imprisonment with the possibility of parole after thirty years, pursuant to the FSMA.

         On July 7, 2017, Scherrer filed a pro se motion to vacate the amended sentencing order arguing that (1) the circuit court could not amend his sentence under the FSMA because it had been vacated by the habeas order, (2) he was entitled to a resentencing hearing as a matter of fundamental fairness and evenhanded justice, and (3) the application of the FSMA to his sentence was unconstitutional because it was ex post facto legislation. The State responded and asserted that the FSMA remedied the Miller violation by retroactively extending parole eligibility to juvenile offenders. In an order entered on November 13, 2017, the circuit court found that it lacked jurisdiction to rule on Scherrer’s motion to vacate because, as a posttrial motion under Arkansas Rule of Criminal Procedure 33.3(c), the motion had already been deemed denied.

          Scherrer appealed the circuit court’s order. In his pro se brief on appeal, however, he asserts that the circuit court lacked jurisdiction to rule on his motion to vacate and that his "attempt to have his illegal amended sentence vacated was doomed from the start." In any event, this court may address the issue of an illegal sentence sua sponte. See Harness v. State, 352 Ark. 335, 339, 101 S.W.3d 235, 238 (2003) (noting that we treat problems of void or illegal sentences like problems of subject-matter jurisdiction and review them even if not raised on appeal). A sentence is void or illegal when the circuit court lacks the authority to impose it. Cross v. State, 2009 Ark. 597, 357 S.W.3d 895. The question in this case is whether the circuit court had the authority to sentence Scherrer under the FSMA.

         In Harris, 2018 Ark. 179, 547 S.W.3d 64, a juvenile offender convicted of capital murder challenged the application of the FSMA to his case. Harris ...


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