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Wesley v. State

Supreme Court of Arkansas

October 10, 2019

EUGENE WESLEY APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          PRO SE APPEAL FROM THE NEVADA COUNTY CIRCUIT COURT AND APPELLANT'S MOTION FOR FILE-MARKED COPY OF APPELLANT'S BRIEF [NO. 50CR-93-27] HON. RANDY WRIGHT, JUDGE

          Eugene Wesley, pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't Att'y Gen., for appellee.

          ROBIN F. WYNNE, ASSOCIATE JUSTICE.

         Appellant Eugene Wesley appeals the denial by the trial court of his pro se petition to correct an illegal sentence under Arkansas Code Annotated section 16-90-111 (Repl. 2016).[1] We affirm the trial court order because Wesley did not establish that the sentence being challenged was an illegal sentence and because it was not timely filed. Accordingly, the trial court was not wrong to deny relief under the statute. Also, it appears that the trial court may have treated the petition as one filed under Arkansas Rule of Criminal Procedure 37.1 (2018).[2] Under Rule 37.2(b), the petition was untimely filed and it was an unauthorized successive petition subject to dismissal on that basis, and the trial court did not err in denying it pursuant to the Rule.

         History

         In 1993, Wesley was found guilty by a jury of aggravated robbery, kidnapping, and theft of property. Sentences were imposed of life, twenty years, and ten years, respectively. The kidnapping sentence was ordered to be served consecutively to the life sentence for aggravated robbery. We affirmed. Wesley v. State, 318 Ark. 83, 883 S.W.2d 478 (1994). Evidence adduced at trial reflected that Wesley entered a store in 1993, held a knife to a store employee's throat, took money from the cash register, and forced the employee to leave with him in her vehicle. The employee, who was eventually released, identified Wesley as the perpetrator of the aggravated robbery, kidnapping, and theft of property.

         Standard of Review Under Section 16-90-111 and Rule 37.1

         The trial court's decision to deny relief under section 16-90-111 will not be overturned unless that decision is clearly erroneous. Jackson v. State, 2018 Ark. 291, 558 S.W.3d 383. Likewise, a decision on a petition for postconviction relief pursuant to Rule 37.1 will not be reversed unless the trial court's ruling is clearly erroneous. Wood v. State, 2015 Ark. 477, 478 S.W.3d 194. With respect to orders on both section 16-90-111 and Rule 37.1 petitions, a finding 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 committed. See e.g. Swift v. State, 2018 Ark. 74, 540 S.W.3d 288 (The trial court's decision to deny relief under section 16-90-111 was not clearly erroneous and was affirmed.); see also Woods v. State, 2019 Ark. 62, 567 S.W.3d 494 (The trial court's decision to deny relief under Rule 37.1 was not clearly erroneous and was affirmed.).

         Section 16-90-111

         Section 16-90-111(a) provides authority to a trial court to correct an illegal sentence at any time. Jenkins v. State, 2017 Ark. 288, 529 S.W.3d 236. An illegal sentence is one that is illegal on its face. Jackson v. State, 2018 Ark. 209, 549 S.W.3d 346. A sentence is illegal on its face when it is void because it is beyond the trial court's authority to impose and gives rise to a question of subject-matter jurisdiction. Swift, 2018 Ark. 74, 540 S.W.3d 288. 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. Fischer v. State, 2017 Ark. 338, 532 S.W.3d 40.

         The petitioner seeking relief under section 16-90-111(a) carries the burden to demonstrate that his or her sentence was illegal. Latham, 2018 Ark. 44. Therefore, Wesley was entitled to no relief under section 16-90-111 unless he established that the judgment in his case was illegal on its face.

         Wesley alleged in his petition under section 16-90-111 that the sentence for aggravated robbery was illegal because it exceeded the "mandatory minimum" sentence permitted under the sentencing statutes in effect in 1993 when he committed the offenses. He also contended that the convictions for the three offenses violated the Double Jeopardy Clause because they arose "from the same set of facts."[3] Wesley raises the same arguments on appeal and also contends that an evidentiary hearing should have been held on his petition and that the trial court failed to make written findings of fact on the petition.

         Double Jeopardy Claim ...


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